Coriaan de Villiers
Labour law seeking to reform the sex work industry needs to take cognisance of ”indoor” sex workers. And though there is a rapidly expanding sex work industry in South Africa, it is unlikely there will be a significant change to laws that criminalise adult commercial sex work at least in the near future.
There are two options law reform or declaring certain aspects of the Sexual Offences Act unconstitutional. Whatever the outcome, a key concern of any law reform effort should be to protect this vulnerable and marginalised group of workers.
It goes without saying that because sex work is illegal, labour laws do not currently apply to these workers. But the area of contention arises when considering the prospective decriminalisation of sex work and brothels. Various organisations and individuals involved in lobbying for better working conditions and rights of sex workers have expressed concern that without passing any further laws, these workers may not fall within the protection of our existing labour laws.
The answer to this question lies in whether sex workers are employees. If sex workers are employees they would be covered by laws such as the Labour Relations Act, the Basic Conditions of Employment Act and the Occupational Health and Safety Act.
Yet what needs to be borne in mind is that the sex industry is diverse: there is an ”outdoor” industry of street sex workers, but there is also a substantial number of ”indoor” sex workers including massage parlours, escort agencies and brothels. Within the indoor industry, managers and owners often argue that sex workers are independent contractors and not employees. However, in most brothels sex workers are employees.
Owners of brothels advertise in newspapers for sex workers, and applicants for the job are interviewed. If the worker gets the job she moves on to the premises. The brothel owner pays the rental and maintains the property. Shifts are determined by the owner or manager and during the shifts the workers are generally not allowed to leave the premises. Shifts are typically between 12 and 14 hours.
In many brothels the tariff is set by the brothel, the sex worker is paid by the client, she deducts her earnings and the balance is immediately handed over to management. The worker typically keeps about 40% to 60% of the money paid by the client. Fines, ranging from R5 to R1 000, are frequently deducted for breaking ”house rules”. This fine system is extremely exploitative and sometimes results in debt bondage.
If sex work and brothels are decriminalised, sex workers will be protected against these high commissions, long working hours and fines. Workplace health and safety laws could also be applied in such a way as to ensure protection against HIV/ Aids, sexually transmitted diseases and violence from clients.
Should adult commercial sex work be decriminalised, it may be difficult for sex workers to claim these labour rights. The stigma attached to the industry is a barrier to unionisation and individuals may not be sufficiently empowered to bring claims against brothel owners. However, these obstacles should lessen over time. Decriminalisation is the first step towards ensuring that sex workers enjoy the protection of the labour laws that apply to all other employees.
Coriaan de Villiers is the Acting- Director of the Women’s Legal Centre in Cape Town