Segue abaixo importante analise elaborada pela Cosatu acerca de propostas de reforma laboral na África do Sul.
Creio que tal discussao, especalmente no que tange 'a terceirizacao e a limitacoes no direito de greve, e' de grande importancia tambem para o movimento sindical brasileiro.
Tal debate das companheiras e companheiros sul-africanos e' especialmente relevante e atual para o Brasil, especialmente tendo em vista duas serias ameacas aos direitos trabalhistas:
- o PL 4330, do Dep. Sandro Mabel, que permite que as empresas terceirizem todos os trabalhadores, inclusive em sua atividade-fim; tal PL este ano esta' caminhando apassos largos na Camara dos Deputados, e encontra-se atualmente na CCJ;
- o recente Decreto n. 7.777, do Governo Federal, que viola o direito constitucional de greve.
Segue a materia.
Abraco,
Maximiliano Nagl Garcez
"COSATU maintains the call for a complete ban on labour brokers and responds to other submissions on the Labour Law Amendment Bills
8 August 2012
On COSATU`s call for a ban on labour broking
COSATU notes that various media reports on its submission to the Labour Portfolio Committee on the labour law bills (comprising the Basic Conditions of Employment Amendment Bill and the Labour Relations Amendment Bill) give the impression that we had "given up" on our fight for a complete ban on the inherently exploitative practice of labour broking.
In our submission we did report on bilateral discussions we had with ANC leadership, and conceded that we had not as yet been successful in reaching agreement on a complete ban. We also went on further to make the following statement, which clearly confirms we remain unmoved on our call for a complete ban:
"This is notwithstanding the fact that we maintain our fundamental stance that there should be a complete and full ban on the practice of labour broking, with an emphasis on the bipartite employment contractual relationship between the worker and the true employer (viz. the so-called client)."
Furthermore in response to questions from the media as to our response should we not be successful in Parliament on this issue, we indicated that regardless we would continue to pursue a ban as a part of our agenda. This would include dealing with it at COSATU`s national Congress to be held this year in addition to the ongoing processes in Parliament.
Outstanding fundamental concerns with the bills
In addition to the issue of labour broking, agreements were reached on the following outstanding concerns during the bilateral discussions with the ANC:
Relevant clauses would be deleted where they undermined the right to strike and picket, in contravention of our Constitutional rights. These include:
the requirement to ballot members;
imposing liability for contractual and delictual damages should there be a material break of a picketing agreement;
excluding public or civil society supporters from joining a picket by limiting the picket action to "members" of the trade union and affected bargaining unit;
Increasing the power of the Labour Court to suspend a strike or picket, whereas under the existing law the Labour Court`s power is limited to interdicting the unlawful action only.
These provisions, it is claimed, are aimed at addressing strike violence. Whilst COSATU condemns acts of violence and unlawful behaviour during industrial action, it must be stressed that the majority of industrial actions are embarked upon peacefully. This is despite sensational media reporting focusing on the minority of incidents that are not so. The proposed amendments will arbitrarily undermine and dampen the right to strike for all irrespective of this distinction. As such it is not genuinely targeting strike violence but rather the right to strike.
There should be an amendment of relevant provisions that allow for the expansion of the scope of "essential services" so that it will in future include "public officials exercising authority in the name of the State", thereby excluding them from exercising their rights to strike. These would include customs officials, immigration officials, judicial officers and officials working in the administration of justice. The emphasis on state "authority" is a departure from the proper definition of "essential services" which is applicable only to services that if interrupted would likely result in serious adverse health and safety consequences. We believe that this clause should be deleted.
Deletion of a new probationary-type clause located under the sections dealing with fixed-terms contracts. This provision is problematically included as a "justifiable exception" to a new clause that is otherwise a huge advance for fixed-term contract workers. Employers would accordingly be able to dismiss employees during the first six months of employment that may be used to test "suitability", and during which time the employee would have no recourse to challenge an unfair dismissal either on substantive or procedural grounds of fairness.
On the general opposition to the bills from the business community
Why we need to promote decent work
Now that the Labour Portfolio Committee has completed its hearings we have had a chance to reflect on some of the submissions made by other organisations.
Notwithstanding our fundamental problems about the retention of labour brokers as well as further outstanding concerns relating to industrial action and probation, we welcome the general thrust of the Bills. We believe that these lay the foundations for advancing the objectives of promoting decent work and access to a living wage for all, especially with respect to provisions that aim to address atypical employment.
Both locally and internationally there has been a dramatic increase in casualisation and other non-standard or atypical forms of employment, as opposed to the more traditional forms whereby workers are generally employed on a full time basis on an indefinite formal contract with a regular wage and employment benefits. Job security and income security is logically an integral feature of the more standard forms of employment, and ensures that workers and their dependents have more certainty and security.
Employers are using ever-more creative strategies to evade complying with their legislative obligations, including:
Disguising the true employment status of a worker as a commercial contract, using such contractual forms as independent contracting or so-called owner-drivers in the road freight industry.
Fragmenting the workplace, using outsourcing arrangements or restructuring the organisation commercially into separate business units and legal entities, which undermines the centralised nature of collective bargaining.
Relocating employer obligations to a third party/intermediary using outsourcing, subcontracting, labour broking and franchising.
Using insecure contractual arrangements such as casual or fixed-term contracts. This has given risen to the phenomenon of the permanent temporary worker.
The insecurity of atypical employment and the poor bargaining power of affected workers entrench wage stagnation and irregular incomes as inherent factors that trap workers in poverty, with little opportunity for skills development. Increasingly workers are doing either the same work as previously or even working longer and harder under worsening hazardous conditions whilst taking home declining wages and benefits. This is reflected in the decline in both the real unit labour costs and workers` share in national income, the latter of which has currently fallen to well below 50%.
It is relevant that the ILO recently noted in the "Global Wage Report 2010/2011" that:
"Wage trends during the crisis should be considered against a backdrop of wage moderation and widespread and increasing wage inequality in the years before the crisis... characterised by rapidly increasing wages at the top and stagnating wages at the median and bottom of the distribution."
In South Africa this is echoed by statistics which continue to reflect disparities along race, class and gender lines. According to recent estimates the top 5 percent earned more than 300 times than that of the bottom 5 percent. In 2010 half of all South African workers earned less than R2800 a month, with African workers earning on average a mere 23 percent of what workers earn. In 2007 approximately 71 percent of African female-headed households earned less than R800 a month.
Accordingly in our view legislative intervention to correct these imbalances is urgent and long overdue.
Calls for a further RIA and predictions of job losses
COSATU has consistently objected to the imposition of a Regulatory Impact Assessment (RIA), which is confined to making an enquiry into a single factor; namely "what is the cost to business". Wholly ignored is the question of what (further) social costs will ensue in the absence of labour market regulation. Prevailing statistics reveal that an increasing number of the employed are being trapped in waged poverty, with direct adverse consequences for their dependants and the increase of inter-generational poverty.
Moreover the consequential economic costs to other constituencies and sections of the economy are ignored. Reducing the costs for business must have the effect of displacing and transferring the obligations for those costs to be borne by others, which include not only affected workers but ultimately the State.
Consider for example that in 2010 only 458 000 households (of these only 93 000 and 83 000 were respectively from African male and female-headed households) had a source of income that included a non-state provided pension. In contrast for the 2011/12 financial year there were in excess of 2,7 million recipients of the state pension, which cost the State approximately R37,3 billion. Many of those currently dependent on the state pension, fall into this group despite an entire lifetime of having worked before retirement age, and as a result of having earned low wages and received no or minimal benefits.
RIA`s and other similar so-called studies seek to quantify the costs for just one segment of the economy, without taking into account the consequential impact of transferring those costs to the most marginalised and vulnerable. This is extremely problematic taking into account our context of structural patterns of high rates of unemployment, poverty and inequality.
The BUSA (Business Unity South Africa) submission, in supporting the imposition of a RIA, has made wild claims of job losses of 215 150 as a result of equalising employment conditions between atypical (part-time and fixed-term contracts) and permanent workers. It further "projects" that between 11 684 and105 155 jobs would be lost should the Minister of Labour prescribe minimum percentage increases for those earning above the minimum wages set down in terms of the various sectoral determinations.
However, in both instances their evidence fails to back up these projections in the absolute terms that BUSA expresses itself in its "headline comments", viz that "jobs will be lost" (emphasis added). Buried quite far down in the submission is the fact that BUSA has calculated these so-called projections on a number of "assumptions", the selection and identification of which are never explained. For example, in relation to the minimum rates of increases it makes the following statement:
"Since it is not entirely clear what proportion of workers would be affected, we offer three sets of assumptions: that 25% of employees earn above the minimum, that 50% of employers earn above the minimum, and that 75% of employees earn above the minimum. We then calculate job losses based on a mandatory increase of CPI+1%; CPI+2% and CPI+3%." (Emphasis added)
The 105 155 job loss prediction is based on the combination of the assumptions that an unbelievable 75% of workers earn above the minimum and that an increase of CPI+3 will be imposed. It is unclear how/if BUSA accounts for the numerous possible variances in the amounts that workers in different sectors may earn above the minimum.
Furthermore, despite the need to address the apartheid wage gap and promote a living wage, the Department of Labour has historically been unnecessarily conservative in its wage determinations. At least within the past five years (if not longer) there have been no minimum wage increases amounting to as high CPI+3, with many determinations merely keeping in line with inflation such as in the wholesale and retail sector. BUSA`s projections are not drawn from past experience or established facts but rather a selection of overstated data calculated at generating mass hysteria against the labour law amendments.
It is understood that much of the above is drawn from a RIA conducted recently for BUSA by the Small Business Project (SBP), an organisation that is inherently predisposed against labour market regulation as reflected by the numerous publications on its website. Its research quite problematically is not based on accurate or objective methodology but rather surveys of business "perceptions of constraints on growth and regulatory costs".
Contrary to these sentiments against minimum wage regulation we note that a 2010 SALDRU study ("Evidence on the impact of minimum wage laws in an informal sector: Domestic workers in South Africa", by T Dinkelman and V Ranchod) found that minimum wage regulation had had a positive effect on conditions for domestic workers, with wages rising as much as 10% when compared to workers in other sectors.
Opposition to regulation of subcontracting
There has also been significant resistance to the regulation of subcontracting including from Eskom, which indicated that there "was a need to avoid an adverse impact on the financial viability and sustainability of employers". The hypocrisy of such statements are consistently lost on executives from SOE`s such as Eskom and JSE listed companies alike, despite reflecting an upward trend of exorbitant executive remuneration packages that are never construed as a constraint on the growth of industries. For the last financial year Brian Dames (Eskom`s CEO) received a 9, 6% increase in remuneration that was backdated to July 2010, bringing his overall package up to R 8, 284 million.
During the public hearings Eskom indicated that it is reliant on subcontracting for its construction programme at Medupi and Kusile Power Stations, with most of the estimated 12 000 construction workers being hired through labour brokers. It is relevant that the ILO studies reflect that a high proportion of workers in construction can be classified as being in precarious employment, taking into account both their lack of contractual security and overall conditions of work. This is in large part due to the multi-layer nature of the subcontracting arrangements common in construction involving a number of intermediaries, as opposed to just one when compared with the more standard labour broking arrangement.
It is also significant that with multi-layer subcontracting, accountability and enforcement of standards are severely constrained, especially safety standards affecting occupational health and safety as well as the construction itself. Accordingly arguments promoting reliance on subcontracting, where this cannot be justified by the inherent nature of the work and especially where it is merely motivated by costs, are untenable. It is especially unacceptable for Eskom to be advancing this argument considering; firstly its role in providing the delivery of a basic service that should be of an acceptable standard; and secondly that as a public utility it should be promoting decent work in line with its inclusion in as Government priority .
COSATU`S SUPPORT FOR THE BILLS
COSATU`s support for key provisions in the Bills is summarised below
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Integra disponivel em http://www.cosatu.org.za/show.php?ID=6400
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