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Workers fight job-creation ‘mess’

Former Ekurhuleni municipal worker William Gundwane says he feels “stuck”.

“I haven’t moved forward at all,” he says, standing in a hallway of the labour court in Johannesburg on Tuesday. “I am just going up and down, in and out the doors of the courts … I don’t know where I am even going to after this. I don’t know.”

Gundwane is one of the almost 200 workers taking on the City of Ekurhuleni over a job creation scheme which they say has left them skilless and without stable work. With legal help from Lawyers for Human Rights, Gundwane and his colleagues have fought for five years for permanent jobs at the municipality.

The workers were employed through the Lungile Mtshali Community Development Project, which was launched in 2014 by the then mayor Mondli Gungubele. The project is aimed at creating jobs
and fighting poverty in the municipality.

Gundwane says: “When I started the job, I was telling myself: ‘Now, I am going ahead. Now there is something that I am going to achieve in my life.’ Because for a long time I didn’t have a permanent job. For a long time I didn’t have the opportunity to get training.”

When the 42-year-old — who now farms vegetables on the small plot outside his shack in Daveyton — talks about the little training he did eventually receive, he lets out a deep sigh then grips his face with both hands.

“I was just getting disappointed in my mind, because I couldn’t understand why the municipality was doing this to us.”

During the workers’ hearing on Tuesday — presided over by acting judge Aadil Patel — their counsel, Erin Richards, contended that in reality “there was no job creation programme”.

The workers were employed under three different contracts between March 2014 and August 2016. Under these contracts the workers rendered a number of services for the municipality — including cleaning drains, sweeping the streets and fixing burst pipes — for a monthly stipend of R2 000.

According to her heads of argument, under the first contract the workers received no training.

Under the second contract, the workers were supposed to receive 60% “theoretical training” and 40% “practical training”. But workers testified at a South African Local Government Bargaining Council arbitration hearing that they had only received between three and 12 days of training.

According to an arbitration award, contained in court papers, the workers were told that they would be trained so they could be permanently employed by the municipality.

But in an affidavit to the labour court, the municipality’s head of employee relations, Xolani Nciza, denies there was any intention to employ the workers permanently.

For the third contract, the municipality used a company called Hlaniki Investment Holdings and the Gauteng Enterprise Propeller — an implementing agent for the provincial government — to recruit and manage the workers. This contract ran from December 2015 to August 2016.

Again, the workers received little worthwhile training, Richards contended.

In court, she called the training provided to the workers under the third contract “a shambolic mess”.

“The employees’ evidence is [that] there was a maximum of 15 days’ training … The employees testified that the training was completely useless and gave them no ability to embark on any entrepreneurial endeavour,” she said.

Richards added that workers ended up doing “the normal mundane work that they had been doing for the rest of the time. That’s no development, no skills training, nothing.

She further argued that the municipality’s relationship with Hlaniki and the Gauteng Enterprise Propeller allowed it to “have its cake and eat it”.

“It [the municipality] has a legislative mandate to perform regarding keeping its areas clean,” she said. “It is using employees now on a rotational basis to fulfil these cleaning and maintenance services without attracting the responsibilities of treating those workers as employees.”

The workers’ argument for permanency relies on the position that they were effectively employed by the municipality through a labour broker — in this case, Hlaniki.

Richards argued that, because Hlaniki did not provide the promised training to the workers and instead simply supplied unskilled labour to the municipality, it acted as a labour broker.

Section 198 of the Labour Relations Act (LRA) limits labour-broking contracts to three months, after which the law considers a worker a permanent employee of the client company.

The workers argued in arbitration proceedings that the municipality was the client in this case, insofar as it directly benefited from the labour performed by the workers.

On Tuesday, acting judge Patel said his “main concern” was that Richards would be able to show that there was a labour-broking relationship between Hlaniki and the municipality.

The municipality’s argument is that, if there was any labour-broking relationship, it was with the Gauteng Enterprise Propeller, which contracted Hlaniki to manage the programme. “And as such, it cannot be said that the municipality was a client,” counsel for the municipality, Mashudu Tshivhase, contended.

Tshivhase added that the workers’ lawyers are on a “fishing expedition”.

But Richards rebutted by asking Patel to view the labour-broking relationship beyond the terms of the contract.

She argued that all that is required for a labour broker “to constitute a statutory employer in terms of section 198A [of the LRA] is that it places workers with clients for a fee and remunerates these workers”.

“I am going to place emphasis on the word ‘with’, in that it places workers with clients,” she added.

“The word ‘with’ means that the client is the person that the employees are placed with, not the person that remunerates them [the labour broker].”

Earlier in Tuesday’s proceedings Richards contended that, if the court does make a ruling in favour of the municipality and legitimates the job creation project, there will be “massive implications”.

“Because what a finding like that will do, my lord, is across the entire public service — where there are these job creation schemes that actually don’t manifest — that jeopardises the job security of all of those employees across the country.”

Judgment was reserved.                                                                                                                                      

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Sarah Smit
Sarah Smit
Sarah Smit is a general news reporter at the Mail & Guardian. She covers topics relating to labour, corruption and the law.

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