The South African Regime of Contract

South Africa's labor regime was defined through a long history of exclusions and fragmentations. The first key division was between a system of industrial conciliation for white workers and coercive control for black workers. As Chanock argues, South Africa's “legal culture” was not one of two “systems,” but of the necessary imbrication within this apparent duality of forms of control.Footnote ⁸ The regime of contract relied on the regular and central use of precarious labor activated through regulatory and administrative mechanisms. A key implication was racial and gendered segmentation of the labor market, as has been described in much detail by South African scholars.Footnote ⁹ In this section, I will emphasize how the various instruments used to shape the labor markets of black and white workers in South Africa effected a discourse that elided manual, unskilled labor with blackness. The blurring of race and skill became a definitive component of the regime of contract within retailing, as we will see. The industrial relations framework was introduced by the state in 1924 as a response to several violent strikes by white workers in the early decades of the twentieth century, culminating in the Rand Revolt in 1922, an attempted revolution by white workers.Footnote ¹⁰ It moved to discipline, institutionalize, and incorporate the white trade union movement by establishing a system of statutory bodies to negotiate and mediate industrial disputes, and it prohibited the right to strike during an agreement. Trade unions were thus refigured to “industrial purpose” focused on wage bargaining.Footnote ¹¹ To be represented within its scope, a worker had to belong to a registered trade union; to belong to a registered union, he or she had to be an “employee”. Fundamental to the South African system, the definition of employee within the law excluded “pass-bearing natives”, or African men and later African women.Footnote ¹² Through this definition of employee, African workers were denied membership in legally recognized trade unions.

The “pass” registered an African worker's legitimate movement into an urban area for work or rationale to stay in an area. Pass laws were variously formulated out of vagrancy laws within the South African colonies. These were applied to Africans as well as to ‘Coloureds’Footnote ¹³ and ex-slaves to regulate movement. In general, the colonial state introduced a wide range of measures, from poll tax to hut tax, to control movement, residence, and land ownership. This ensured a supply of cheap black labor to mining, agriculture, and the manufacturing industries that emerged alongside them.Footnote ¹⁴ The resistance to incorporation into wage labor was frequent and proved a frustration to colonial administrators, in turn affecting legal frameworks.Footnote ¹⁵

Pass laws supplemented masters and servants law, which punished desertion or other breaches of contract of service as a criminal offense.Footnote ¹⁶ Masters and servants laws derived from British statute and were imported in various forms directly into its colonies or between colonies.Footnote ¹⁷ In South Africa, while “servant” was not racially defined but broadly defined as a laborer, over time the courts narrowed its application “to keep whites out of the range of definition of servant.”Footnote ¹⁸ Through court decisions, then, most occupations of industry and trade became excluded from the scope of “servant.”Footnote ¹⁹ The law came to be assumed to apply to unskilled labor. Chanock adds, “in any case administratively … proceedings were not normally taken under the Acts [of masters and servants] against white employees.”Footnote ²⁰ Thus, masters and servants law came to refer to African labor, and African labor came to elide with “unskilled.” Masters and servants law was particularly relevant to control rural labor and to justify mining compound labor. For urban African labor, pass laws came to predominate.Footnote ²¹ The critical point here is how in the constitution of the South African state's legal regime, the coercive measures to regulate movement and ensure a cheap labor force to mining and agriculture melded with a set of assumptions about the skill of this labor. The law enforced employment of black workers, and black labor became coincident with unskilled manual labor.

Unlike in Britain, where masters and servants law became subordinated to the idea of the labor contract and unskilled and skilled workers united under one system, Chanock argues, then, that in South Africa the “idiom of contract” operated both for black and white workers, but differently. For African workers, it strengthened the relation of master to servant by obfuscating coercion behind the “choice” of contract.Footnote ²² The combination of masters and servants law with pass laws created a regime of control over movement and breach of contract within a framing of the ostensible “freedom” to choose employment. This pattern differed from French African colonies, where forced labor was more important, and from nonsettler British West African colonies, where peasant production remained more central.Footnote ²³ In South Africa, African workers were “free” to choose their employment, provided they had a pass to look for employment, and once they got a job, they remained in that employment.

With the industrial conciliation machinery adopted particularly from other white dominions like Canada and Australia, for South African white workers “inclusion” in turn applied to negotiation around working conditions.

A second issue of importance to the idea of contract was wages. The Wage Act introduced an administrative mechanism to regulate basic conditions and minimum wages for certain sectors not covered by industrial councils and generally with more vulnerable conditions and lower wages, such as retailing. In setting up the Wage Board, which was a statutory body that determined sectorally specific Wage Determinations, racially differentiated wages were not legislated. Instead, occupational and skill categories were, as were differentials by years of experience and by gender. As debate ensued about how to regulate African workers’ wages in industry and trade, African wages became de facto defined by skill category, with “unskilled” and general laborer wage rates set in wage determinations and assumed to be applied to them.Footnote ²⁴

Furthermore, the notion of “employee” was framed in terms of the ability to earn a “civilized wage” to support a family in “civilized conditions.”Footnote ²⁵ As in other contexts, a family wage applied only to white male workers.Footnote ²⁶ Indeed, the South African formulation borrowed from Australian law.Footnote ²⁷ White women's wages were pegged at two-thirds the wages of men, as it was assumed that

This debate led to concerns around white women undercutting men. Instead policy makers argued that “it would be better for men to seek higher-grade work than to try to compete with women, for example in offices and retail trade where they had come to predominate.”Footnote ²⁹ Gendered divisions then also underlaid South Africa’s industrial relations system. Wage bargaining thus applied neither to the wages of black unskilled labor nor to the secondary labor of white women.

In South Africa, precariousness was central to the employment relations system, through its dependence on a bifurcated regime from the start, both to supply cheap labor and to reify and legitimize industrial conciliation for white workers. While white women's labor was protected through regulation, the gender and race associations with low skill and low wages also meant that regulation and administration of statute reproduced forms of precarious labor central to the regime. Most centrally, what was standard employment always also meant what was not black and unskilled labor.

Retailing, Race and Skill

As a comparatively minor sector, the retail industry was not covered by an industrial council. From the early 1930s, retail employment became regulated through the mechanism of Wage Determinations, which set the wages, hours of work, and basic conditions for an industry. These regulations were determined by the Wage Board through public hearings, where recognized trade unions and employers presented.

By the 1930s, the workforce within retail began to change with the increased entry of black male distributive workers and lower-skilled white women serving as shop assistants and clerical workers as retailing expanded through larger chain stores.Footnote ³⁰ The sector formed its first national union in 1936, the National Union of Distributive Workers (NUDW), which merged regional professional trade unions into one body. In 1943 the NUDW held an historic strike with the African Commercial and Distributive Workers Union (ACDWU) representing black warehousemen and packers. The strike established the recognition of the white union through industrial conciliation and was extended to most large chains, which by that time operated throughout South African towns.Footnote ³¹ From that period, the sector operated through the “Tribunal Agreement,” which provided for representation of white workers through the NUDW. The union negotiated with large retailers to put policy in place, and it concentrated on monitoring the conditions set out in the Wage Determination. It also lobbied the Wage Board through public hearings when the determinations were reviewed. Thus, by the mid-1940s the sector had reached what then became a long and steady period of industrial peace.Footnote ³²

Black distributive workers used the Wage Board to assist them to improve basic wage rates through the war years when the state relaxed its views on unregistered trade unions, but following the 1946 black mineworkers’ strike, the state moved to control black workers and their unions.Footnote ³³ The Industrial Conciliation Amendment Act of 1956 clinched the exclusion of black workers from legal rights to trade union membership.

Within formal retailing, the labor force was constituted by mainly white men, white women, and black men as distributive workers until the late 1960s when black women began to enter as general workers and cleaners and then as service and clerical workers in larger numbers. Thus, the first 1946–47 Census of Distribution and Service Establishments for General Dealers records that in 200 establishments nationwide there were 2,356 white men; 7,484 white women; 3,199 “native” (African) men; 204 “Asiatic” (Indian) men; and 771 Coloured men employed.Footnote ³⁴

Labor relations within retailing became formalized through a racially bifurcated labor market in which white workers, the majority of the work force, fell under a standard employment relation marked generally by full-time hours (forty-five hours per week) and regulated through the setting of sector minimum conditions and wages and represented by a recognized trade union. Within this segment white women and white men filled different occupational categories, and women's wages were legislated at lesser “female” rates. Qualified rates of pay for each occupational category defined by years of experience, counted by time in the industry, ensured white workers’ long-term security and loyalty.Footnote ³⁵

In addition, a sizeable number of black men worked as manual general laborers, considered to be unskilled. Through the wage determination, they earned a minimum wage set for the job category of general worker, which by contrast did not accrue higher wages through experience. Thus, in 1940 [m]any [Africans] work[ed] in and about shops and warehouses as cleaners, warehousemen, and porters, while a large number are employed as drivers, packers, etc.”Footnote ³⁶ In general, the yearbook reported that the “natives”—as opposed to Coloured and Indian workers—“are much less skilled, and consequently do most of the rough manual labour.”Footnote ³⁷

Wages, then, assured the Union's year book in 1946, were pegged for “unskilled” jobs:

African workers in retailing worked on fixed-term contracts, defined by allocation of work through “pass offices” in urban areas. Black workers only gained the right of residence in towns through a posting of employment. The “pass book” certified this posting, and workers not in possession of one could be removed from the workplace, the street, or from the town. African workers in retail warehouses and in stores referenced the importance of having their “passes in order.”Footnote ³⁹

According to one 1951 survey, black workers were male and “unskilled,” falling into the “laborer” category, doing generalized manual jobs of packing, lifting, and scrubbing.Footnote ⁴⁰ With general laborers, employers were allowed great flexibility in their assignment of tasks, and they moved workers between departments, jobs, and floors.Footnote ⁴¹

While the manual labor force might be relatively stable in tenure—with African retail workers reportedly staying longer in their jobs than those in manufacturing—these workers also served under the ever-watchful eye of “bossboys,” black supervisors employed specifically to manage a pool of black workers punitively.Footnote ⁴² This insecurity was built into their jobs and into the labor market through segmentation by race and thus naturalizing segmentation by skill. Until the late 1960s, black workers in the retail sector labored under these conditions. Wages were defined through generalized association with manual labor. Wages were not bargained for by workers themselves, but regulated through statutory sectoral minimums for general labor. Workers had no room for advancement to other occupations. That black workers were general laborers was taken for granted. They did not have rights to belong to a trade union. They had to register their employment contract with the labor bureau as a pass-bearer.

By contrast, two categories of nonstandard employment that applied to white men and white women, casual and part-time work, operated through and reenforced gendered and racial meanings in other ways.

Part-Time and Casual Labor

Both part-time and casual employment were regulated within the sector. Part-time work shows up for the first time in the 1953 Wage Determination for commercial and distributive trade. Through lobbying by the NUDW, the Wage Board introduced the possibility of part-time hours in two occupational categories, shop assistant and clerical worker, most prevalently held by white women. The Department of Labour explained that the introduction of part-time hours was a response by the state to stabilize the appeal of retail jobs to white women in the context of an increase in labor turnover, for which the industry and the union expressed concern. Regulation offered augmented wages and proportional benefits to part-timers in relation to full-time employment. Over the years when wage determinations were revised, the NUDW negotiated for the improvement of conditions of part-time work.Footnote ⁴³ Indeed, part-time employees were a core constituency of its membership. This category of employment, then, was central to the sector, premised on the presumption of the projected gendered identity of white women, with the most significant part-time shift being 11:00 to 3:00, preferred by women because of domestic and child care duties.Footnote ⁴⁴ By the 1950s and 1960s a growing public anxiety over women's participation in the labor market shifted the union's focus more toward defending their female members as “responsible mothers.”Footnote ⁴⁵

A second category of nonstandard contract existed as a core feature of the retailing labor market in South Africa. “Casual” labor was legally permitted in the industry from its beginning. In the very first Wage Determination in the sector in 1931, casual labor was listed as a separate classification.Footnote ⁴⁶ As I have described elsewhere, the utility of this form of contract to employers rested in its temporary status. Initially it was defined as employment for not more than fourteen days in three months; by the late 1930s this had shifted to not more than two days per week. By the 1950s, the sector had normalized the category of “casual employee” as someone working not more than three days per week.Footnote ⁴⁷ While the meaning and use of casual employment varies across contexts,Footnote ⁴⁸ in South Africa, as in Australia, casual employment was similarly understood to be seasonal work for a short duration, and it is likely to have entered South African regulation from its Australian formulation.Footnote ⁴⁹ In South African retailing, casual work was considered a form of regular but temporary employment hired at the end of the month or on short term in particularly busy seasonal periods, such as Christmas.Footnote ⁵⁰ Casual workers were paid accordingly, without rights to paid leave or notice of termination.Footnote ⁵¹ However, they were awarded a premium wage of one-and-a-third the rate of a qualified person in the occupational category, which was designed to limit the expansion of casual labor, prevent replacement of permanent staff, and compensate casual workers for working without benefits or leave entitlements.Footnote ⁵²

Furthermore, the social meaning of casual employment was quite different from that of part-time employment. Firstly, casual workers were not part of the bargaining unit of the union. Secondly, they were usually assumed to be young (white) men who were students or who were entering retailing to gain experience while finishing school. One union official called the typical casual employee a white “male scholar or student.”Footnote ⁵³ The association with white male labor and with its presumed youth and temporariness meant that the union and its membership did not view casual labor as competition. Indeed, the NUDW complained to a retailer that “[a] number of my members, who have relatives working as temporary hands…, and who are students or scholars, have asked me to take up with you the question of the wages and working hours of these temporary employees.” It charged that these casual workers were not being paid the premium wage and demanded that the wage rate be rectified “with absolute urgency, as the employees concerned will soon be terminating their service contracts with the Company.”Footnote ⁵⁴ Through union and worker reinforcement, the attribution of casual labor with a status of temporary student labor was to hold throughout the 1980s in retailing.Footnote ⁵⁵

In short, the social meaning differed between part-time employment, associated with the regular labor of white women, and casual employment, assumed often to be the labor of white students. Thus where nonstandard forms of labor for white workers were found in retailing, these were incorporated into a regime of contract that formalized employment, as when the state, retailers, and the union aimed to keep white women in the job or externalized it as nonessential support with proffered compensation, as when workers’ sons “helped out” to gain experience.

Black Workers Enter Service and Clerical Jobs

While stakeholders acted to reinforce the practice and the expectation of the regulation of white labor within the sector, including nonstandard forms, black workers began to enter in larger numbers. By the late 1960s and early 1970s, black women and men began to be employed in service and clerical labor but continued to be employed as general laborers or paid at the lowest rates for the job as they entered higher skilled service and clerical work.

When black workers entered, they encountered the long-held perception that they were “manual” workers. Black women, for instance, were hired as general laborers at lower wage rates but were assigned shop assistant work. In the late 1960s and early 1970s, the NUDW fielded complaints from Coloured and Indian members.Footnote ⁵⁶ In 1970, the union wrote to management at a major retailer about “discriminating against Coloured workers in respect of the wages paid to them.” It continued, “[T]he matter cannot be allowed to rest there, because White workers are also very much involved. The latter feel that if they are going to be consistently undercut by Coloured workers then their jobs cannot be safe, and they do in fact feel quite unsafe.”Footnote ⁵⁷ Thus, black women were being paid lower rates of pay for the same jobs or were hired as general workers but in practice worked as shop assistants.

In this period, a campaign to introduce job reservationFootnote ⁵⁸ into shops and offices in these service jobs came up for discussion, although it was dismissed due to a clear white labor shortage in the sector.Footnote ⁵⁹ Instead in retailing, Coloured and Indian women moved into service and clerical jobs alongside white women but experienced informal discrimination in supervision directed at them. For instance, in 1972, Coloured women workers employed at a major retailer held a temporary work stoppage to protest a number of discriminatory practices they alleged were applied only to them and to not white staff, including, “insinuation” and interrogation about money and time. The union wrote to management that “[w]orkers feel that they are under a constant cloud of suspicion and conditions were unpleasant.”Footnote ⁶⁰

As the union newsletter summarized,

The union did not support job reservation but campaigned for the “effective rate for the job” in order to maintain the integrity of the occupational hierarchy that had been definitive to the labor market of retail.

By the mid to the late 1970s, African women also began to move into service and clerical work.Footnote ⁶² As the unionist Emma Mashinini wrote, ”Cashiering and clerical work was for whites only, and then for Indians and coloureds as well. But now [mid-1970s] black people were again given jobs as shop attendants and clerks. It was interesting to see this promotion of our people.”Footnote ⁶³

In response to low wages, unfair dismissals, and racist treatment, African workers organized into their own union. In 1975, the NUDW helped to launch an independent black trade union in retail, the Commercial Catering and Allied Workers Union (Ccawusa), and employed Emma Mashinini as its first organizer and general secretary.Footnote ⁶⁴ When workers mobilized it was to gain the protections within the sector already accorded to white workers, particularly white women, whom they worked alongside. Ccawusa was a militant union and within a relatively short period of time won important demands for black members for recognition, improvement in wages, and procedure to protect against racist treatment and arbitrary dismissal.Footnote ⁶⁵

Critically, in South Africa, the Wiehahn labor reforms in 1979, which were the state's response to the growing black trade union movement of the mid to late 1970s, introduced a number of reforms, in particular admitting black workers into the definition of employee and thus, industrial relations legislation. The new unions organizing black workers used these reforms to organize further.Footnote ⁶⁶ On the eve of the formation of the federation of the Congress of South African Trade Unions (COSATU) in 1985, Ccawusa was the second largest union of its founding members, after the National Union of Mineworkers, largely explained by its successes over the ten years of its existence.

The new black workforce was a different generation. As children of migrants who gained residential access to cities in the 1940s and 1950s, they understood themselves as urban. They were relatively well educated, and they were politically conscious, many schooled in the Black Consciousness Movement and politicized in the 1976 student uprisings.Footnote ⁶⁷ While retail jobs had begun to be deskilled by the 1980s through task fragmentation, nevertheless, black workers’ new jobs in clerical and service work required a level of literacy, numeracy, and proficiency in English, which they confidently exhibited. They organized as black workers, firmly understanding that their specific problems of class and race defined their collective experience as different from their colleagues—in particular white women.Footnote ⁶⁸ Thus, black workers fought to gain the conditions that white workers had taken as the norm. Black women had no interest in part-time employment, and they fought against low wages, prescribed from association with manual labor and its entanglement with race. Black working-class women fought for full-time employment and the standard shift. They won maternity rights and benefits, like a provident fund. In short, as black workers became the majority workforce, they organized to gain the benefits of the standard employment regime.

Postapartheid Precarious Labor in Retail: “Casualization” and Labor Brokering

The postapartheid reform of the labor relations system built on what workers and their unions won through struggle in the 1980s. In 1987, Ccawusa became the South African Commercial Catering and Allied Workers Union (Saccawu), which was active in negotiations around new labor law dispensation.Footnote ⁶⁹ In 1995 a new labor law was finalized that constructed a procedurally fair system that formalized unions’ organizational rights as well as workers’ right to strike and bargain collectively, incentivized worker participation in the workplace, and gave all employees rights to basic leave and working hours protections.Footnote ⁷⁰ Postapartheid labor law reform had as its objective the unification of the employment contract for all workers.

Nevertheless, even as black workers were consolidating their gains, from the late 1980s in retailing, the use of casual labor expanded and began to fragment the standard employment contract in new, yet familiar, ways. The definition of casual employment discussed above relied not on limited duration employment, but on part-time hours of work. This ambiguity carried consequences for the expansion of precarious employment in the late apartheid and postapartheid period. By the late 1980s while continuing to be viewed as temporary, casual employees came to be hired for long-term durations while increasingly exempted from basic employment protections and benefits.Footnote ⁷¹

Just as it was in the 1970s, casual workers in the 1980s were often students working extra hours around school times. Like their predecessors, black workers brought their children and relatives in to casual jobs to earn extra income.Footnote ⁷² And, like their workmates, unionizing full-time, permanent black workers continued to associate casual labor with its subordinate status. As I have argued elsewhere,Footnote ⁷³ because it was focused on fighting for the rights of full-time workers, the union inadvertently enabled the spread of casual employment. In this time, recession hit retailers, and Saccawu negotiated “flexitime” agreements in exchange for retaining full-time, permanent staff jobs otherwise threatened with retrenchment. In some cases, in exchange for signing collective agreements to become “flexi-workers,” the union supported employers’ applications for exemption from the Wage Determination, in the process giving up the premium wage regulated there for casual employees.Footnote ⁷⁴ In practice, these agreements rarely improved protection for casual workers.

Retailers then took advantage of the prior existence of casual labor as an employment form, and the union focused on representing its core membership, those in full-time jobs. Throughout the 1990s and early 2000s, retailers increased the use of casual labor on the shop floor across jobs and for extended durations, with the union acceding to avoid deeper cuts. Campbell and Brosnan argue that in Australia casual employment was regulated but left unprotected through “gaps” in its award system, such as through exemptions and special provisions, and casual workers fell into “pockets of non-protection.”Footnote ⁷⁵ In South Africa, the industry continued to assume that casual workers were employed on a weekly temporary basis for less than twenty-four hours each week, even when by the 1990s, many had worked for years for the same company as “casuals” with no job security or the regulated premiums meant to offset this insecurity.Footnote ⁷⁶

In the 1990s divisions of labor were reproduced by workers through the associations attributed to casual labor. Thus, casual workers were seen to be young and inexperienced. Even when workers readily joined the union, full-time permanent workers often did not allow them a voice and did not represent their interests within bargaining.Footnote ⁷⁷ Whereas casual labor was regulated within the sector and its skill strata when white workers were employed, as black workers entered, the associations with student labor attached to it facilitated the reproduction of assumptions about the ongoing secondary status of casual workers, even as they became an important new source of cheap labor. As the standard employment contract became unified, pushed through the struggle of black workers for inclusion through parity, new forms of precariousness were generated through such continuities, and the labor contract fragmented once again.

But the story continues. One of the most important reforms to the postapartheid labor legislation was the revision of the definition of employee that was so central to apartheid labor control. The trade union movement and drafters of the new laws ensured the inclusivity of its scope under the post-1994 dispensation. In so doing, legal reform made obsolete the very notion of “casual” labor as it was used in retail. Thus, from 1995, as pushed by trade unions, the law redefined an employee as anyone working twenty-four hours or more per month (three days or more per month). Within the sector, unions and employers embarked on a drawn-out negotiation of the (now renamed) sectoral determination to redefine the category of “casual” employment. It was only in 2003, that revised sectoral labor legislation was promulgated, which purged the category of “casual” in order to bring all retail workers under the same basic protections and in line with national law, a bottom line on which Saccawu held firm. Instead, several new statuses of part-time employment were added, those working less than twenty-four hours per week, those working less than twenty-seven per hours per week, and those working less than forty hours per week. By individual agreement, workers reassigned to one or another part-time status could trade off certain basic conditions of employment: most importantly for the sector, higher wages for unsocial working time.Footnote ⁷⁸ The new regulation made it incredibly complicated to assess what basic condition applied to which category of employment. In essence, reform was meant to close the loophole that sustained the expansion of precarious labor through “casual” employment. Instead, it opened new lines of division that exacerbated fragmentation.

More generally, regulatory reform retained the assumption that some form of nonstandard employment was required in the industry. It was defined, as in the past, through shorter hours, but now its definition included foregoing overtime—Sunday and public holiday pay, in particular. Part-time employment would be on indefinite contract and thus legally normalized under employment law, but it would reproduce the notion that a cheapened and low-skill workforce remained at the core of the sector, even as black workers wanted full-time hours.

Still, when “casualization” was regulated, employers then increased their use of contract labor hired through labor brokers. Contract labor has been a defining feature of the South African labor market, most visibly through black migrant mining labor, which was defined through annual fixed-term contracts through which labor bureaus placed workers with employers. This mechanism regulated labor supply as well as residency of African workers through a range of legislative statutes, as has already been discussed. But, the specific form of “labor brokering,”Footnote ⁷⁹ in which a firm supplies labor to a client firm, was introduced into South African law most likely in relation to the relaxation of influx control in the 1970s and 1980s.Footnote ⁸⁰ In this period, employers began to source labor outside government labor bureaus to meet their expanding labor requirements.

The first mention of labor hire comes in 1983 amendments to the Labour Relations Act. The amendment on labor brokering was added because employers were trying to circumvent protection for wages and minimum conditions through utilizing labor hire agencies, often actually to supply skilled labor.Footnote ⁸¹ Thus, the initial amendment was meant to reassert protection of statutory wage and basic conditions of employment measures where employers were seeking to evade them. The 1983 clause carried the condition of registration of agencies with the Department of Labour, and it named the labor broker as employer rather than the client firm.Footnote ⁸² The legislation stipulated that a labor broker was someone who “for reward provides a client with persons to render services to or perform work for the client or procures such persons for him, for which service or work such persons are remunerated by the labour broker.”Footnote ⁸³ As racial segmentation of labor markets shifted skill categories, employers sought to maintain a means of lowering costs. Indeed, Le Roux suggests that the initial (racial) unification of the employment contract itself, emerging out of Wiehahn reforms, may have in part led to processes of externalization of employment.Footnote ⁸⁴

In the postapartheid Labour Relations Act of 1995 (LRA), the terminology changed to “temporary employment agency.” While the 1983 amendment clarified the employer, the postapartheid reform sought to shift the risk for noncompliance from the employee to the client. It introduced joint and several liability for breaches of the Basic Conditions of Employment, sectoral determinations, collective agreements, and arbitration awards although a clause that was to include unfair labor practices and unfair dismissals was taken out in NEDLAC negotiations.Footnote ⁸⁵ The provision that labor brokers register with the Department of Labour was removed from the 1983 version as was a clause that the client's premises be considered the place of work.

Both the 1983 and the 1995 clauses, it seems, were meant to deal with the temporary use of labor brokering by client firms. The indefinite use of employees placed through labor brokers was not anticipated. Yet since about 2000, this form of precarious labor has expanded more broadly in South Africa as well as in retailing. There are not adequate figures recording labor brokering. Industry analysis broadly cites around thirty percent of the total South African workforce in contract, temporary, and agency employment.Footnote ⁸⁶

In retailing, contract labor increased in the mid-1990s in jobs like merchandising, shelf packing, and bag packing. Retailers had also used labor brokers for cleaning, security, and service departments, like bakeries, delis, and butcheries. The most recent trend has been for retailers to contract whole (formerly core) departments, like cashiers located at front cash registers.Footnote ⁸⁷ While labor brokers supplied employees on contract, these workers worked for years for wages that were one-third to one-half lower than permanent retail employees, often in a single workplace.Footnote ⁸⁸ Further, the union has continued to be unable to organize workers in brokers because law defines union scope by employer.Footnote ⁸⁹

Labor brokering was attacked by unions as a pernicious form of precarious labor undermining regulatory protection.Footnote ⁹⁰ Since 2010, pushed by COSATU's demand for an outright prohibition on labor brokers, there has been a major review of labor regulation around temporary employment agencies. Saccawu contributed to drafting the COSATU submission to Parliament in 2009 and played a key role in these negotiations in NEDLAC in subsequent years. From its experience of labor broking in retailing, Saccawu argued that temporary employees be included within the bargaining unit.Footnote ⁹¹ The review has resulted in amendments to the LRA, the introduction of a new act and amendments to the Employment Equity Act. These changes have strengthened the joint and several liability clause, allowing employees to choose whether to file a grievance against the temporary employment agency or the client firm and allowing unions to represent employees of temporary employment agencies for workplace representivity with respect to either the agency or the client. A key feature is limiting the duration of the contract for temporary services, introduced to protect lower-skilled workers who were employed de facto continuously.Footnote ⁹² Again, reregulation responded to fragmentations that operated to exempt certain categories of perceived unskilled labor from protections.