The Committee was briefed by a South African Racehorse trainer on the situation with trainers and labour legislation. The Committee had initially invited the Association of Trainers to come and explain some of the issues raised after an engagement with Phumelela Gaming and Leisure, but only the Racehorse trainer was available to come to the meeting and explain the situation with trainers. There was therefore no formal presentation. Members were advised to indicate what they expected to hear from the trainers in the absence of a presentation. It appeared that the trainers as the direct employees of the grooms had some sort of lease agreement with Phumelela Gaming and Leisure and that in the lease agreement; Phumelela was expecting the trainers to comply with labour laws.
Members from the Democratic Alliance (DA) did not see the necessity of this meeting and felt the CCMA was a more appropriate forum. They were informed that this Committee had a right to call out anyone that threatens compliance with labour laws and the employment of workers. Members heard that it was only the racing association property which was leased from Phumelela and thus Phumelela was responsible for the upkeep of the premises including the hostel. The Economic Freedom Fighters (EFF) had said that the grooms were living in absolute squalor. The speaker had refuted this as a number of illegal immigrants were living in the hostel and had rented floor space from the grooms who were living there. Up to 20% of the grooms lost their jobs because of massive wage increases which were actually done under duress and threat of violence from the EFF, not only to themselves, but also to any grooms under them. 5% or 160 of the trainers were not compliant with UIF and with Workman’s Compensation. This matter has been taken up by the appropriate authorities. Members were asked why the government was distance from the matter and were informed that legislation affected everything.
The Committee was briefed by the Department of Labour on levels of compliance with labour legislation pertaining to horse training and groomsman ship. The inspections in the various provinces were outlined with the main objective being to determine the level of compliance with labour legislation being the Basic Conditions of Employment (BCEA), Occupational Health and Safety (OHS), and the Unemployment Insurance Fund (UIF). The intervention from the Department related to the non-compliant employers who were issued with enforcement notices to comply within the prescribed timeframes. Members heard that it is not about the breeding of horses but taking care of them which then takes the scope out of the agricultural sector and back to the BCEA. The scope depends on the activities that take place and in their case, they were dealing with grooming. The trainers were confused about where they belonged and what ministry they reported to because of the wide scope of activities involved in having a horse. Members were informed that there was no recognised association of trainers.
Members asked where a rider gets injured, whose responsibility was it to ensure that he gets medical assistance; for an update on those areas identified to be of concern and the current state of affairs; how they planned to resolve this issue regarding the differences with the trainer since there must be a way of dealing with the matter otherwise it would be a case of consistent non-compliance; how many employers submitted representations; whether the advocacy being carried out was general or whether they were focusing on the specific issues raised on non-compliance; whether the trainer was also complying with legislation in terms of oversight with respect to public holidays and long hours; whether the inspections that the Department had done were the first inspections and if not, were there second inspections and in which years were they done; and the trainer was asked to comment on the issue on whether they felt that staying as they are right now without an association is the right thing or if they should get organised.
The issue was raised again about the DA’s comment that the trainer’s submission meant ‘nothing’. The DA were given a stern talking to about this and told that it was not right for Committee Members to act like they did not understand what they were doing in front of the Department and the guests when they actually knew what they were doing because that was tantamount to sending a message that they were confused when they were actually not confused. This was an unnecessary embarrassment and they needed to avoid embarrassing themselves in front of the guests. The Committee was mandated to look for an association but unfortunately they did not find an association but they did find a trainer who has had interactions with the other trainers and was willing to speak to the Committee.
It was emphasised that there was a need to use advocacy more effectively so that it reached both sides of employees as well as employers. The issue of the compensation fund and the OHS has not been so much of a focus point in the inspection but it is something that they may need to improve on. Members said that the Department was not trying to frustrate their business but it was important for clarity on obligations so that when money was made it was very clear that there are no issues because everyone would have complied.
The Chairperson began by welcoming Members. He reminded them that on the last oversight meeting and consideration of the report that they had they agreed that they would invite the Association of Trainers to come and explain some of the issues raised after the engagement with Phumelela Gaming and Leisure Ltd. In this respect he said that the trainers are actually the direct employees of the grooms and the trainers have some sort of lease agreement with Phumelela and that in the lease agreement, Phumelela is expecting the trainers to comply with labour laws.
He informed members that what they could expect on the day was to have a copy of the lease agreement, and they will be talked to about the terms of the lease agreement, what it entails and the level of compliance required with it. He said that they would also be looking at the ruling that almost implicated Phumelela and the trainers to be considered joint employers of the grooms, and asked whether they were aware of that or not. He pointed out that the trainers did not have any sort of representation unfortunately, but they were expected to be answering questions. Given the little brief that he had indicated, the Committee could expect them to indicate how they do their business with the grooms and how they are related to Phumelela, the level of compliance with the labour laws i.e. the Labour Relations Act; the Basic Conditions of Employment Act (BCEA); Unemployment Insurance Fund (UIF); and the Workman’s’ Compensation Act. He said that they should indicate how they are faring in that terrain. He mentioned that South Africa is a constitutional country and that there are laws governing everything that is being done. The trainers should thus indicate what the level of compliance with the laws is in their sector. He opened the floor to Members to indicate what they expected to hear from the trainers, more so in the absence of a presentation.
Ms S Van Schalkwyk (ANC) indicated that the Chairperson had covered the basics but said that as they give the update, the Committee would also want to hear from them on what their oversight visit and communication to the relevant stakeholders bore and an update on if anything changed in the interim when there were engagements or whether the situation was the same.
Mr M Bagraim (DA) indicated that he does not know why the Committee has to deal with this issue because it should have been referred to the CCMA immediately if there were problems with the terms and conditions of employment as has been seen from the inspection. He said that he was not sure why the Committee had to deal with the issue and pointed out that if every other time a group of employees had issues, he was not sure this was within their mandate to address such issues.
The Chairperson in response indicated that he thought that Mr Bagraim would indicate what he expected to hear from them since the debate would come after that. He said that the Committee has a right to call out anyone that threatens compliance with labour laws and the employment of workers. The main point is that if there is any employer that finds it difficult to comply with labour laws, they should try and close the gaps in terms of policies. He pointed out that it was not their job to lock people up but they had an obligation to ensure that their laws are followed and that if they pose challenges, laws should be corrected. If laws cannot be corrected, people should be advised to comply. He pointed out to Mr Woodruff that if there was anything that his team deemed as problematic in his sector, they should indicate as such so that the Committee could consider whether there is a need to amend a piece of legislation. He said that in the business of trainers they indeed must make money, but there should also be a fair guarantee that their employees would have work and get value for their work and fair treatment on health issues, and basic conditions of employment. He then welcomed Mr Woodruff to take over.
Presentation by Mr Geoffrey Woodruff
Mr Geoffrey Woodruff, South African Racehorse trainer, Phumelela Gaming and Leisure Ltd then took over and introduced himself as a trainer. He pointed out that he had been tasked to come and explain to the Committee the situation with the trainers. He said that he did not have a presentation as such. His trainers are not employed by Phumelela but they are employed by himself and that he simply leases the premises to train from Phumelela and that there are those trainers of his who chose to stay in the hostels provided by Phumelela. He highlighted that it was only the racing association property which he leases from Phumelela and thus Phumelela are responsible for the upkeep of the premises including the hostel. He said that he thinks Phumelela has been unfairly accused of neglecting the hostel more so since he has been there. In 2013, they had spent roughly R3million in refurbishing the hostel which had about 400 rooms. The same amount of money was spent in fixing walls, broken windows, broken lights, sockets and that whatever was wrong.. He said that when the Economic Freedom Fighters (EFF) came along they said that the grooms were living in absolute squalor. He pointed out that the security which was also Phumelela’s responsibility was not up to scratch because they were a number of people (60 or more) who were illegal residents in that hostel and they were renting floor space from some of the official residents i.e. the grooms who were entitled to be there. For example some of them were contract workers for the roads. He reiterated that it was very unfair to accuse Phumelela of overcrowding when in fact the hostel was designed for a maximum of 400 people i.e. the space available for all the grooms, which number in fact exceeded the number of grooms and it was beyond their comprehension as to why there were 500 people there until they investigated and found that there was a large number of illegal residents. This was important to take note of because Phumelela got a lot of slack from the EFF for overcrowding and conditions of squalor.
He said that he has been to the hostels and Phumelela are fixing everything that was wrong again which is going to cost another couple of million rands. He said that the security has been changed and a register has been taken for the grooms for workers that qualify to live in the hostel. Living in the hostel is not mandatory and some grooms live close by. The issue has been addressed and a great deal of construction has been going on. There was an illegal liquor store which has since been closed. They had thought that the grooms, especially the younger grooms should be living in a more family like environment, but this was going to be very difficult as it would be difficult to expect them to commute to work every day. They therefore saw that if that was the case, and if the grooms wanted to stay in the hostel, then the hostels should be very well run and controlled. He was speaking with Phumelela management in the previous week and that there is a lot still happening on their side and that it was unfair to blame them for the conditions of squalor when they were not the cause of them but were just the mender and repairers of the acts of vandalism. One of the questions that one of the trainers had asked him personally to pose to the Committee is what changes they would like to see, and what they expected to see, not in racing but from the trainers and the workforce.
He pointed out that they were largely family businesses and that there seems to be the notion that trainers are a group of people who work for wealthy people and that they are very wealthy themselves. This was a complete misconception as his workforce comprises his wife, his daughter, his son and two assistants. They were a small business and they just simply work for very wealthy people and they performed a function for them. When the EFF came into their life in June they caused a lot of trouble and that unfortunately put a lot of small businesses (however not his) on the breadline because they could only charge so much for training horses. The owners do not need it in their life because it is a hobby for them and if this hobby becomes expensive for them unfortunately they will leave the industry and then everybody else will leave including the government. Unfortunately they had to restructure their businesses as the grooms had to go onto a 45 hour or fewer working weeks and the number of horses that they now looked after became irrelevant. As long as the work is achievable within that time, then that is what is expected and up to 20% of the grooms lost their jobs because of massive wage increases which was actually done under duress and threat of violence from the EFF not only to themselves, but also to any grooms under them and to their horses, which was totally unacceptable. He however said that anyhow they got through that. One of the grievances of EFF was that nobody was paying the basic minimum wage. However on inspection it was found that 99% of the trainers at ranches in Johannesburg and the Gauteng region were above the minimum wage at the time they were accused of paying slave wages. No apologies were ever offered for these grievances being refuted and as in any businesses, they as trainers collaborate when there is a common cause. In this respect, they did get together and found that some 5% or 160 of the trainers were not compliant with UIF and with Workman’s Compensation. The matter been taken up by Phumelela and not the EFF, as Phumelela would have simply come to them as trainers to tell them to get their house in order as they would lose their stables. This was because Phumelela can evict a person if they are not compliant with the basic conditions of employment as per the lease. He said that personally he has been registered for UIF and Workman’s’ Compensation since 1989, but the EFF came specifically to him because he happened to be the only poor person in their sight and accused him of not paying. This was not true and he has the papers to prove it. The only part of their memorandum of grievances where Phumelela was wrong was on the transportation of horses. The transportation of horses has to be done in a rigid lorry if the grooms are to be able to sit near their horses and calm them if need be, and otherwise they have to be in a separate vehicle. He emphasised that you cannot have a groom in a trailer but a groom can be in a rigid lorry according to the Ministry of Transport. He said that a representative from Phumelela has been working with the police and that the tracks have been redesigned so that they are complaint. Other than that, the memorandum of grievances was inaccurate if not completely incorrect. Except in the case of three trainers who were not fully compliant, one with the UIF and the other was paying below the minimum wage. He however emphasised that that was one case out of 160 trainers. If anybody would like to shoot back at him on where they thought he was incorrect, he was more than happy to answer any questions.
The Chairperson asked whether he was done and pointed out that it was the trainers who had the knowledge as to the practice on a normal day for the trainers. He urged that this be explained fully to limit the number of questions.
Mr Woodruff then said that he would like to highlight to the Committee about a day in the life of one of the grooms and the interaction with himself and the horse. He said that they start work at 5.30 am in the morning and start their clock from 5.20 am to 6am which was the window. He said that not everybody can put their time in the machine at the same time even though it’s quick. They then pull their horses out. The grooms vary in age because his youngest is 20 years and the oldest is 64 years who has worked for him for 21 years now and although he does not ride, he still looks after horses and he does it very well. He said that his whole life, he has been looking after horses and he in fact had the privilege of looking after Julia Ward’s horse. The horses are then taken out to the tracks in three strings (groups of horses) and each of the horses gets an hour. The working hours in the morning are from 5.30am till 11am, being 5 1/2 hours which are more than enough to get the horses out, get them brushed off and get them fed. The Jockeys work the horses for the most part and they are professional work riders who are paid R20 per ride but they are however not employed and they must pay their own worker’s compensation because they are self-employed. He said that he is not sure whether they indeed do pay the same but they have been advised to do so. If the jockeys are not racing, they come to the track about four or five times a week to ride the horses, exercise and to get a feel of the horse. The work for them is pretty straight forward. 11am to 2pm is free time and they start again at 2pm till 4.30pm. During this time, horses beds are to be made up nicely, horses are cleaned and fed and the yard is swept. They have a short afternoon and they pay fortnightly. On He said that on Wednesday they have a shorter afternoon as they come in at 3pm and work up to 4.30pm. If it is a day race, the groom gets an extra R150 and even if he has gone to the races for work time, the times may overlap. If it is night racing, the groom will get R300 extra. The guys like to go racing because it’s handy extra money. For whatever prize money a horse earns, the groom gets 1% of that amount, and if it wins, it can amount to almost R25, 000 which is paid from Phumelela to the groom’s account. He said that he was one of the trainers in the original meeting about four years ago to formulate this plan to secure remuneration for the prize money for the grooms. He said that they would like a little bit of assistance from government for groom skills as there is a great difference between a fully trained groom and a labourer who comes from the streets looking for a job. He said that it takes a great length of time for a groom to get the skills of working with a horse and doing so safely. He said that they would like to interact with the government as to how they could enhance skills development because the industry needs to grow to make it an attractive hobby for the owners to invest in. He said that you cannot force a man to have a hobby but they want to encourage them to invest in it because it is good for business and for everybody.
He said that they were subjected to Blitz by the Department of Labour and they had the pleasure of doing four visits during which time inspection was done on working hours, safety and UIF. He had a report that one group was less than satisfied with the state of the hostel for which he said that his earlier explanation still stood. There were no adverse reports about UIF, Workman’s Compensation, safety, working hours and safety clothing. They had complied but as most trainers comply, there would always be one trainer who either cannot afford or does not care. He said that should such people were identified and there was no need to bring a Committee to fix it as it was very easy for Phumelela to take a trainers license if they are found noncompliant. He did not know why the EFF ever had to get involved. The first time he heard of this complaint was when the EFF blocked a line of people at gate trying to get into the races at 11am on a Thursday morning. He could not believe that government and racing are so far apart.
The Chairperson interjected and asked Mr Woodruff to try and not become emotional because if he did so, he may end up losing the capacity of his brain and say certain things which he did not want to disclose. He said that the Committee just wanted to know how they ran their business and how they went about complying. He urged that Mr Woodruff should not respond to them as if they were questioning him on the basis of the EFF Memorandum.
Mr Bigraim pointed that the EFF were not there today and that a dozen complaints of EFF involving themselves in labour disputes had been received and that is why it could be important to mention about them.
The Chairperson once again said that the Committee had been on the ground and a report had been done, and a copy of the report had been issued to them but the trainers were not invited on the strength of an EFF report or memorandum. They only wanted to be informed on what was happening so that an assessment could be made to see if there was need for any policy amendments. He said that the key was in issues of compliance and the regime that talks to the relationship of reporting. When everything is very clear then the 1% or so who are still compliant must be woken up.
Mr Woodruff took over and said that he was completely unaware of what is in the report from the last meeting. He said that they indeed fall under the Basic Conditions of Employment Act just like any other employee, but they have been given no sector. They had thought earlier that they were under agriculture, but they are not. He said that they have no sector and this is something that government could help them with. While they were working with animals, they were also working on entertainment at night, on public holidays and since a lot of racing takes place at night, there were a lot of extra wages to pay and extra costs incurred. It was known that everybody had to have an unbroken 36 hours per week. Whether one was expected to work on Sundays or not was a grey area and they did not know how to approach it. They had a schedule that works for them which has made their life a little bit more difficult because they have more work to do. They are happy with it but would like to know whether government is similarly happy with it. The labour inspectors disagree on the issue and that in the Blitz inspection that they had, three different inspectors gave three different answers. He said that they would like to have a sector and be able to sit with government to assess what can work and what cannot work.
The Chairperson took over and said that for the issue of Blitz, the Department on Labour would talk more about that. He said that breeding horses is an agricultural activity; horse racing goes into trade and industry; and that there was an element that talks to labour. Their business unfortunately struggles with many portfolios but it is important to be aware of how to relate and be aware of the different pieces of legislation that apply to them. Other legislation like the Basic Conditions of Employment Act, the Labour Relations Act , the Compensation for Occupational Injuries , the Occupational Health and Safety Act all apply but when you consider agriculture i.e. the breeding of horses, there were other pieces of legislation that apply and the same applies to the gambling sector. It was important to know about all the laws that have an impact on them. The reason he was emphasising this was because Mr Woodruff had made a statement asking why government was distant from the matter. He said that there was nothing that they do that is not affected by legislation. He gave an example about issues on health considerations of grooms for example what happens when a groomer is sick, or when he falls. He asked about when a groomer that trains a new horse, and when a commission was paid to a horse that wins a raise; the one that specialises in training a new horse will not get commission and will thereby be cutting himself out of getting commissions in preparing horses that go for races. He asked for some clarity on that issue.
He then informed Members that they were free to ask any further questions. He reiterated that Mr Woodruff was not speaking on behalf of whole country but only those trainers that are in Johannesburg in part.
Mr Woodruff reiterated that they do not have a recognised committee or association as such and they just collaborated with each other when there are matters that pertain to all of them. He said that the trainers from Gauteng are paying more to their grooms at present than the trainers in Cape Town. They are trying to get a national grooms wage.
The Chairperson asked whether Mr Woodruff was aware that there are associations of grooms. Mr Woodruff answered in the affirmative and said that he was aware that there are four different unions. He said that as yet there has been no consultation because they gather that there is a new union that wants to represent the grooms. He said that they were listening but so far, nobody has come to them as yet. The Chairperson then opened the floor to Members.
Ms Van Schalkwyk started by thanking the Chairperson and said that she welcomed the oral presentation that had been made. She proposed that for the way forward in terms of the engagement, they hand over to the Blitz team to report on the inspection that they conducted and they will then have a better opportunity to engage both the Department and the trainer. She proposed that they hand over to the Department so as not to waste time.
Briefing by the Department of Labour on levels of compliance with labour legislation
Ms Fikiswa Mncanca, Legal Advisor, Department of Labour said that the inspections were conducted in August after the meeting. She said that the inspection was done in five provinces being Gauteng, Kwa Zulu Natal, the Western Cape, the Northern Cape and the Eastern Cape. The main objective was to determine the level of compliance with labour legislation being the Basic Conditions of Employment (BCEA), Occupational Health and Safety (OHS), and the Unemployment Insurance Fund (UIF).
She then gave a disclaimer and mentioned that as Mr Woodruff was presenting, a question was asked as to what happened if a groom got injured. She said that although they checked on all the applicable legislation while conducting the inspection, there was an omission in their report on the compensation fund. Phumulela had to provide their business model on the 22nd of August 2018 and that was achieved because they wanted to see how their business model was. Inspections were conducted on 27th to 29th August 2018 and that the advocacy sessions to educate workers on their rights were also conducted on the 3rd and 5th of September 2018. What they did before they conducted inspections was to educate employers and employees on their obligations and rights. She said that upon inspection, any cases of non-compliance that were identified would be referred to prosecution. They also checked the standardised compliance conditions in the lease agreement between Phumelela and all the trainers and that was expected to be done in September but unfortunately they could not find the people that they wanted to communicate with and as a result that is still in progress. The National Horse Racing Authority was to consider introducing a provident fund but the proposal will be taken into consideration. They also checked on collaboration with the Department of Health and they sent out mobile clinics to hostels where the employees resided and the Department of Labour (DoL) had to engage with the Department of Health (DoH).
She reiterated that they had conducted the inspections in five provinces and the total number of inspections that were conducted was 110 out of which it was found that 43 employers complied at the initial inspection and 67 non-compliant employers were issued with enforcement notices. In the Eastern Cape they conducted one inspection and the employer was found to be compliant on the day of the inspection. In Gauteng they conducted 54 inspections out of which 19 were found to have complied on the day of the inspection and the 35 who were non-compliant were issued with notices to comply within the prescribed timeframe. She said that in terms of BCEA, 11 complied after the notice and four were referred for prosecution. For UIF, she said that 10 complied after issuance of the notice and for OHS, two complied and the 15 who did not comply were still within the 60 day period.
She said that in KwaZulu-Natal, they conducted 25 inspections out of which 14 were found to be compliant on the day of the inspection, the 16 that were non-compliant were issued with notices, 14 complied after issuance of the notice and two were referred for prosecution.
Ms Mncanca said for the Northern Cape, they conducted 10 inspections out of which three were found to be compliant on the day of the inspection and the seven that failed to comply were issued with notices to comply. On the non-compliant employers, one of them that was on the BCEA submitted representation. She explained that if the employer is not agreeing with the compliance order that was issued, they have a right to submit a representation so that the matter can be referred to court. On OHS, she said that seven non-compliant employers are still within the 60 day period.
In the Western Cape, she said that they conducted 13 inspections out of which six were found to be compliant on the day of the inspection, the seven that failed to comply were issued with notices and three were referred for prosecution.
She said that the BCEA areas of non-compliance were that employers had not complied with written particulars of employment, they had not supplied information about remuneration and they had not kept records. Areas of non-compliance on OHS were on the first aid boxes, first aid certificates, fire extinguishers, facilities (toilets) and personal protective clothing. She said that in most instances employers gave excuses as these being minor issues. The areas of non-compliance on the UIF were in employers failing to declare employees’ salaries and non-registration to the fund.
She said that the intervention from the Department related to the non-compliant employers who were issued with enforcement notices to comply within the prescribed timeframes. She said that the provinces were to conduct follow-ups on the inspections conducted to check the level of compliance after expiry dates especially in the area of the OHS because on issues of the BCEA and the UIF, they did not expect the inspectors to go back and check because the employers would have to submit documents to show that they have complied. They were also to conduct advocacy sessions and workshops to all employers and employees operating within the industry.
In reference to the issue of trainers lacking a sector and thereby the conclusion that the inspection conducted and the wages paid were with respect to the BCEA, she asked her colleague Mr Esau to talk on the same based on the discussions held in this regard. She pointed out that the salaries paid in the provinces were not the same.
Mr David Esau, Department of Labour’s Western Cape Chief Inspector on current policies, practices and new developments within the labour sphere took over and said that there seemed to be a real misunderstanding on the issue of salaries. He said that some employees still think that they fall under the agricultural sector whereas their employment contracts clearly mentioned that they fall within the BCEA. They therefore would not have a minimum salary within the sector and this was the cause of the confusion. Making reference to Mr Woodruff’s submission on there being a miscommunication on the prescribed salaries paid, and noting that Mr Woodruff had indicated that he was paying the prescribed minimum wage, there was no minimum wage applied by the BCEA and therefore his understanding was that they had an applied salary as determined by other factors. He said that they therefore could not intervene on the issue of salaries in any way. He pointed out that it is not about the breeding of horses but taking care of them which then takes the scope out of the agricultural sector and back to the BCEA. The scope depends on the activities that take place and in their case, they were dealing with grooming.
The Chairperson took over and highlighted the reports. He mentioned the workshops that had been conducted to train the trainers and grooms on their rights and responsibilities. He said that the trainers were confused about where they belonged and what ministry they reported to because of the wide scope of activities involved in having a horse. The confusion needs to be clarified as the trainers were not limited to comply with labour laws only but also laws from other departments relating to gambling. He said that there were inconsistencies in the two reports; however the biggest point to be noted is that there is no recognised association of trainers. He reiterated Mr Woodruff’s submission that the trainers are not organised and only get organised for purposes of issues of mutual concern, but after resolving them, they go back to their comfort zones. He said that Mr Woodruff should give his views on whether it is advisable to continue with that fashion or should they get organised. He then opened the floor to Members to ask questions.
Ms L Mbojo (ANC) started by questioning the Department. She made reference to page three of the report. She posed her question in Zulu. Her question centered around the education of workers on their rights. She said that this is broad and it is not just rights but also living conditions that were at play.
Mr D America (DA) thanked the two teams for the presentations. He said that he understands that the engagement follows the oversight visit and the need for the inspectorate to conduct inspections which they have done. He mentioned that he does not understand the role of Mr Woodruff in this instance, but would come back to that. He said that flowing from Mr Woodruff’s presentation, trainers are independent employers and not part of a training association and that Mr Woodruff does not speak on behalf of other trainers but was only raising concerns raised to him by other trainers. He therefore asked whether they needed to believe him when he says that there was compliance yet there is no evidence of that flowing from the presentation. He said that the outcomes of the inspection are statistical in nature and not specific. He then asked what the difference between Phumelela and golden circle was and whether they operated in different regions. In Cape Town he sees the golden circle but they are not part of Phumelela. He reiterated that the 1% that grooms earn is paid by the owners and not the trainers. The financial obligation flows from the earnings of owners. He was concerned that he, Mr Woodruff is a single employer and he asked for insights on financial sustainability in the industry since they were operating in an environment that is very competitive and competes with other leisure activities and with other sorts of gambling. The competitive environment is very intense and yet the industry is employing thousands of employees. Looking at the impending minimum wage, he had no idea what it was as per the BCEA, while in terms of the outcome of the inspection they said they had complied. He therefore asked how it will affect a trainer who earns R20 per hour and how it affects the industry. Although it is the owner who pays the amount, as a trainer it was still good to know because it is the trainer who passes the amount to the owner.
Ms T Tongwane (ANC) asked how long the ride is where a rider gets R20 per ride and in a case where a rider gets injured, whose responsibility is to ensure that he gets medical assistance.
Mr Bagraim made reference to Mr America’s submission that the evidence they had was from one single employer and not from the industry. He said that he was not sure why Mr Woodruff was here and that it was very nice and useful to hear him but he said that he speaks for nothing. If he had been summoned to come before the Committee and he said he was not sure then why were they were having the discussion.
Ms Van Schalkwyk said that a lot of the issues raised reflected what was found in the oversight visit. She said that the oversight visit was done in August and it was now November. There had to have been some improvement with respect to what was found and the recommendations made. She said that one of the issues raised was on the responsibilities of Phumelela with regard to the upkeep of the premises and she made reference to the R3 million that was expended on the upgrading of the premises. The Department had a responsibility to make themselves aware of the physical conditions of the premises from time to time and that general maintenance like shower doors, privacy and proper flushing of toilets must be monitored. She therefore asked for an update on those areas identified to be of concern and the current state of affairs. There was uncertainty on exactly how the situation was right now and if the Chairperson could afford them an opportunity to send a written report in about two weeks’ time then they would have an opportunity to verify the correctness of that report. She said that in terms of the minimum wage for which it was indicated that they had complied, considering that they are not sure which industry they fall into, she asked whether they ever engaged the Ministry of Labour to give them some sort of clarification and assist them to identify what sector they belong to as well as the laws they are bound by as that would guide them in terms of wages being paid. She asked that for an update on those areas identified to be of concern and the current state of affairs -compliant. In terms of the areas of concern for which Mr Woodruff did not agree with some of the issue raised by the Department of Labour, she asked how they planned to resolve this issue since there must be a way of dealing with the matter otherwise it would be a case of consistent non-compliance. She asked whether they were taking the option of submitting representation if they did not agree. It was a point of concern to note the numbers of non-compliance in Gauteng being 35 out of 54. She asked how many employers submitted representations. She asked further whether the advocacy being carried out was general or whether they were focusing on the specific issues raised on non-compliance. She asked Mr Woodruff whether he was also complying with legislation in terms of oversight with respect to public holidays and long hours. She asked about the 64 year old worker and said that although there was no provident fund, if a person works for 21 years, there must be some sort of provision for him because they were relying on him to train the younger ones.
Ms A Muthambi (ANC) said that her understanding when they decided to call a representative of the trainers to appear before them was for him to respond to the Committee’s observations as raised by Ms Van Schalkwyk. With respect to the presentation made by the Department on the inspection carried out in Gauteng, the report says 54 inspections were conducted and that only 19 were found compliant. She asked about the status quo in relation to this facility. She said that she would align herself with Ms Van Schalkwyk’s submission that for all the Committee’s observations and recommendations, there needs to be a response from trainers. The critical issue was on compliance with labour relations legislations. Although the portfolio cut across a number of industries them being agriculture, trade and industry, maybe it was time that all the pieces of legislation were clamped together. She suspected that by now they were self-regulating. Reiterating the Chairperson’s question, she asked whether they thought they, as trainers should come together under one association, but if they wanted to remain as they were, it was okay as long as there were rules and this would assist in regulating together with other departments such as trade and industry and agriculture so that there could be a policy framework to govern their operations. She said that she understood that this should be a consultative process in order to look at the legalities and decide whether they needed to be regulated or if they would be self-regulated. She made reference to the issue of the people who were found to be foreign nationals who were undocumented and had been referred to home affairs. They would like to know their status now and find out whether they were formally registered. When they were invited to come they were expected to respond to all these issues as observed by the Committee. She said that they understood the difficulty in having an unregulated industry. She aligned herself with Honourable Van Schallkwyk’s point that for all of the Committee’s observations, there should submit a written response.
The Chairperson took over and thanked Members for the questions. He then reiterated Mr Bagraim’s concern that he did not understand why Mr Woodruff, the trainer was before the Committee. He also mentioned that Mr America had raised a similar point. He said that it was not right for the Committee Members to act like they did not understand what they were doing in front of the Department and the guests when they actually knew what they were doing because that was tantamount to sending a message that they were confused when they were actually not confused. He said that this was an unnecessary embarrassment and they needed to avoid embarrassing themselves in front of the guests. The fact of the matter is that they had all seen the oversight report and in the oversight report they had mandated the office of the secretariat to look for the association of the trainers because of the questions that they came across in the oversight. The trainers are key in the industry and without them the industry is dead. Their role in terms of the grooms and what Phumelela expects of them makes them important. They said that they mandated them to look for an association but unfortunately they did not find an association but then they did find Mr Geoffrey Woodruff who has had interactions with the other trainers - although not on a formal basis as a representative of an association- who had agreed to come before them. He said that no one should think that the information he has issued is useless. He said that it was not fair for one to say that they did not understand why Mr Woodruff was there because if not him who was supposed to be there considering that they did not have a recognised structure that represents trainers but he is one of the trainers. Ordinarily he keeps silent when there is an embarrassing situation but this time he had to say it. He said that moving forward then that is not the right thing to do. Both the trainer and the Department had been invited on the strength of their resolution. If there is nothing to ask them or to speak to them about, then the best thing is to keep quiet rather than to create confusion where there is no confusion.
He said that from his part, he wanted to know whether the inspections that the Department had done were the first inspections and if not, were there second inspections and in which years were they done. He asked how they were going to deal with inspections because there were also opportunities to train the people that you were dealing with. As they inspected, they could show them what was expected of them and the more they did inspections, the more training could happen. He said that they may need more inspections in order to cover everything that is required and only over a period of time will fully understand all of what is expected of them. What was important was the kind of programmes of the inspection. He spoke about the clarity on the portfolio that they belonged to for purposes of administration. If they continued to comply with labour, they must also comply with legislation that pertains to health and other areas of their business. He asked Mr Woodruff to comment on the issue on whether they feel that staying as they are right now without an association is the right thing or if they should get organised. If they are not organised, it may lead to one trainer undermining other trainers. This issue can be dealt with only if the trainers are organised and they have minimum standards for which they agree upon as an association. When they are not organised, they will lack the capacity of addressing the grooms because their associations must then speak to each and every trainer individually, and this is something that is not possible. He asked if they are not organised, how does government deal with them and assist them especially where a forum does not exist. Government cannot go to each and every trainer. Investment is key in your industry and the sector needs to grow and improve to attract wealthy owners and the rest. Investment can only come when there is one undertaking of what the trainers want and the owners also want a return on their investment, and it is crucial to have a grouping to commit to an agreement. If they are not organised, the opportunity for investment is undermined. If a bargaining council is established, then they also expose themselves to the risk of not participating in that bargaining council. He said that if the trainers had an organisation with a secretary and Chairperson, then they would assist to engage with the outside world and they would bring to them all the things that they did not have. He then welcomed the responses.
Response by Mr Woodruff
Mr Woodruff started by posing a question to the Department of Labour and asked what was the basic minimum wage in the country as of right now in the farming sector.
Before the Department responded, the Chairperson pointed out the difficulty in engaging in that form of direct questioning and he advised that if Mr Woodruff did not know their minimum wage, then he should just simply indicate as such.
Mr Woodruff said that he understood the minimum wage was going to go be R3500 but he was not sure if it was going to be implemented or set as yet. He said that he would like to compare the wages and pointed out that the wages that their guys were getting was about that and it is now well above that. The lowest a groom with no training and no extra skill is receiving is slightly lower than R4300 per month which is well in excess of the slave wages that they were accused of paying. He said that he wanted the Committee to get this clearly because it has been a selling point that these guys are underpaid but it is not true. The basic minimum wage was R22 per hour. On the work riders’ medical aid, he acknowledged that the same was a very valid question, and he had brought up the issue of what happens to trainers when one of them gets injured with his fellow trainers in the previous week. He does not want them to get injured but at the same time they do not work for him and do not have papers and do not pay UIF and workman’s compensation, but he simply gets a bill for the person every fortnight and pays him. The worker would then be getting say a R1, 000 or R1200 from him as for the work done in that fortnight. There were two of them who he advised to go to Phumelela and the relevant department to find out whether they could register themselves or what would happen if they did not register. They were going to follow it up and they acknowledged that this was a valid question because one person did get hurt about three weeks ago but luckily the person was fine now. They had taken the person to hospital as they would for any of their guys who got injured. He pointed out that if a guy is injured but can move he is taken to hospital but if he cannot move there is an ambulance which is 10 minutes away from the hospital which is called. Medical aid is in place and Phumelela themselves have an agreement with a number of paramedics where they pay them an amount to be available and at the training centre there is a car available every day with a paramedic. He concurred with the Chairperson that they should have an association. They had a sort of informal association and he said that he knows a number of trainers from the Gauteng region as well as some from Cape Town who are his friends who he has known for 30 years. He said that they possibly need to get 4 or 5 regions to form a national committee to engage with government. He said that maybe 3 from each province could be sufficient. He could take it up with fellow trainers on the next day and this could probably take a week.
The Chairperson said that he may have missed one important question which was that of accommodation. There was a need to understand the importance of accommodation. He understands that the trainers have said that it is Phumelela’s business to provide accommodation. However from a labour perspective, he asked whether providing accommodation simply meant that they would provide a place to sleep. As an employer, when you provide accommodation, it is to make sure that the employees are available when they are expected to come to work, and you therefore put them in a place that is safe that guarantees that on the next day they will wake up and come to work and after their work, they have a place to go and rest. However, it appears as though the trainers, as the employers of the grooms, are not worried about where these people sleep and they leave it to Phumelela, but Phumelela has no interest in making sure that those workers wake up healthy and come up to work. He asked about what would be done if a ceiling falls on a worker in the hostel and he does not come to work in the morning. They would not pay him because he had not come to work but because of accommodation purportedly run by somebody else and then the groomer loses out because some ceiling falls on him and he thereby does not come to work and he does not get paid. If the employer is in charge of accommodation, then if a man is injured while in the hostel they would have to take responsibility. They all agreed that the hostel is run by Phumelela and Phumelela is not the employer but the trainers are, but they are however not in charge of where the workers sleep. This is a contradiction. Legally the implication is that Phumelela is therefore a joint employer because Phumelela is doing things which the employer is expected to do for its workers. If the grooms take anybody to court, then probably this matter may come out into the open and he hoped that Phumelela is aware.
Response by the Department
Ms Mncanca said she would tackle the questions on inspections and how regularly they conducted the inspections. The first inspection was conducted in June following complaints around KZN and the Western Cape and after they issued notices, the employers complied and therefore the inspection done in August was the second one in those areas. On how regularly were inspections conducted, she said that their standards say that inspections can be conducted at any time and also following any complaints made. On the issue of the specifics of the inspection conducted in Gauteng, Mr Woodruff was one of those who had not complied with the BCEA but after notices were issues and before they expired, he complied. On the OHS, she said that the notice was still within the timeframe when the report was prepared and so they still have to go back and follow up. There are other employees that are still expected to comply. She said that they had to go and check about the compensation fund as some employees got injured only to find out that they were not registered with the compensation fund. On the issue of advocacy, she would allow Mr Esau to talk on that but normally when conducting advocacy, they cover all areas and then zone into the complaint.
Mr Esau took over and said that one of the main areas that they focused on in their advocacy was the issue of health and safety. Section 8 of the OHS Act places responsibility on the employer to ensure safety and health of workers. After the issue raised by the grooms, that if you work with an animal which can contract any kind of illness, you need to ensure that the employee is covered. One of the issues raised is that the employer, before they employ these employees, needs to ensure that they are healthy and to ask that the medical records of these grooms are kept to make sure that they do not contract the diseases that the horses can contract as well. He said that on a look at the contract of employment, they have covered all the areas of the BCEA and it was important for them to understand their rights. He said that at the beginning, when they tried to speak to them, they would ask to speak only when the employer is not available. This kind of market is structured in a way that the grooms can be replaced at any time because there is a bigger workforce. He said that the line of thought for the grooms was that they should just stay otherwise they would not have a job the next day. They made it clear to them that they could speak to the Department of Labour and that they should not fear any type of intimidation. On the issue of the right of association, he said that it is a very new development within the industry that the grooms can belong to any trade union of their choice unlike in the past say about three or four years ago when it was not very clear. The advocacy was merely about making them understand their rights and responsibilities as employees.
A representative from the Department similarly responded to the advocacy sessions issue. He said that there were sessions where the advocacy went as far as making the employees and employers understand that there is a need for a union to be registered within the industry itself to ensure that the level of bargaining is not at a very low level. He gave the example of the indication given earlier that the employers were paying different amounts. It was established that there was an association which was operating within the industry, but an association has no right to appear before the Commission for Conciliation, Mediation and Arbitration (CCMA) or any other platform that deals with labour matters. They encourage the workers within the industry to recognise this as one of the rights they have i.e. that they can register a union. He confirmed that on 8th September 2018 the South African Horsing Alliance Workers Union (SAHAWU) has been registered and now has 7000 members.
The Chairperson asked Mr Woodruff to indicate whether for the many years that he had been there, was there any groom who had grown up to be a trainer.
Mr Woodruff pointed that there were two black grooms and he said that this was just for the Committee’s enlightenment. There are also quite a number of coloured guys in Cape Town that he has worked with and a number of them have gone through the ranks. It is a difficult industry for anybody to progress up the ladder. These are largely family business and are not able to incorporate others than people for the labour force. He has five guys in a management position now that have progressed up the ladder, but they would not take up the business from his son.
The Chairperson thanked him for that and referred to Ms Van Schalkywk’s issue on women in the industry which had not addressed. Previously they had been told that the same was an area that did not belong to women. He joked that the issue was one in South Africa in this respect.
Ms Van Schalkywk thanked the Chairperson and pointed that there were some questions which had not been responded to for example the one on how long a ride was for which a rider who was paid R20 per hour, and what happens to a person who works for them and retires with respect to benefits. They would not force them to respond to them. She asked that they make available the observations to Mr Woodruff for him to be able to respond within the agreed timeframe of two weeks.
The Chairperson then reiterated that the biggest point to be recognised is that currently the trainers are not organised and they do not even have a secretariat but Mr Woodruff is willing to convene them. It is only when they are organised that they will have better working relationships and the ability to communicate what was expected of them, and also what they expected from the government. He said that the Department’s response on the inspection is not good enough and it is a fairly grey area which requires intense engagement for the next 18 months in the form of engagements and workshops so that they know where they stand. At the moment they are not aware and are swimming in the deep sea. Some sort of a bargaining council should be organised so that they can go and engage in an organised manner and agree.
Mr Esau said that there was a need to use advocacy more effectively so that it reached both sides of employees as well as employers. The issue of the compensation fund and the OHS has not been so much of a focus point in the inspection but it is something that they may need to improve on. He also mentioned the nature of advocacy that needs to be provided to the trainers so as to make sure that both them and Phumelela comply with the compensation fund.
Mr America said that they should not leave Phumelela out of the equation because the responsibility is not only on the trainers and the owners but certainly on Phumelela as well because the employees are residents of their facilities and they have a very important role to play in terms of ensuring that the OHS and other legislation is adhered to.
Ms Van Schalkwyk apologised to the Chairperson if she happened to be derailing or was out of order but she felt the need to indicate to Members that whereas there was someone from the employers side and the Department to give them updates, they had Mr Chophelikhaya Simoto from the South African Grooms Association (SAGA) here who originally brought the matter to their attention. She asked if he could be given a chance to update them on whether the interventions made are yielding results on the ground according to his experience.
The Chairperson said that they did not plan for him to make a presentation. He said that it was wise for him Mr Simoto to observe the progress that is being made and that the Department must engage the associations especially now that a union had been established. Now it was now best to engage their union and not him as an individual. He said that when they will be invited they will be so invited as a union so that when making representations he will be representing all the 7,000 people. He was a little bit reluctant to let him open his mouth. They would wait for the Department to engage the union and have a programme of the Department to engage their workers in the respective provinces on their rights and obligations on their employment contracts. He said that employers also have rights as well as responsibilities flowing form the agreement that they have entered into with the grooms. They had responsibilities and obligations to comply with the laws. He reiterated Mr America’s point and said that the Department, the Union and Phumelela need to sit somewhere in some room someday and make it much more clear on the responsibilities and obligations of all these parties. Phumelela must understand exactly what their role, obligations and compliance requirements are. They should not be surprises when one day these workers take them on legally. There should not be confusion and this begs some sort of clarification workshop and the Department will see how they will handle that whether they will sit with all of them together or whether they will get Phumelela first and handle them and then thereafter handle the trainers. He asked whether there was anyone who was still having a burning issue.
He thanked Mr Geoffrey Woodruff for the willingness to come and assist the Committee and also said that they would be willing to assist them. The engagements opened doors for them as trainers to be assisted as well as to assist the grooms and also to assist the Department. He said that it is not true that the Department is trying to frustrate their business and it is only a business that complies with the laws that can guarantee returns on that they have received at the end of the year. He said that it is therefore important for clarity on obligations so that when money is made it is very clear that there are no issues and nobody will make a claim on their money because they will have already complied.
He also thanked the Department for coming and said that he hoped that they would take home the things that they had spoken about. He said that if they do their things to the best of their ability, then there would never be a threat of another July replica because they will have the grooms, the trainers and possibly even the riders organised as well wherever they are and they will function a lot better.
The Chairperson said that the legacy report was given last week and Members have been asked to look at it and it needs to be agreed upon on the 21st of November. Members had to come and finalise it and approve it. Should there be any inputs; the persons giving the same should be ready to defend that input.
The meeting was adjourned.
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