By Lusanda Raphulu, partner at Pan-African law firm Bowmans
Labour broking, working hours and minimum wages are hot potatoes in South Africa but the country is not alone in grappling with them. From Angola, Kenya and Nigeria to Tanzania, the United Arab Emirates (UAE) and Israel, employers are dealing with many of the same employment challenges as in South Africa – along with some twists unique to the jurisdictions they operate in. This is the view of Lusanda Raphulu, partner at Pan-African law firm Bowmans, after moderating one of the sessions at the 2018 Africa/ Middle East Client Conference of the Employment Law Alliance (ELA).
When it comes to the latest employment law trends, there are striking similarities across much of Africa and the Middle East.
Take the question of working hours which, it turns out, is highly topical in Israel and the UAE at the moment.
Laws cast in stone stand in the way of flexible hours
In the UAE, a major challenge for many employers is the extremely low oil price, which is hitting business hard. One obvious cost-cutting method is for employers to implement more flexible working arrangements. This is easier said than done as the labour laws that were written in 1980 are far from flexible.
Many employers who can no longer afford to have all their employees working full time would like to introduce part-time work or shifts. However, the law in the UAE prohibits anyone from working more than eight hours a day, and part-time work is not an option for foreign workers (making up the majority of the workforce) who must have the sponsorship of one, full-time employer. There is no easy way around this, with penalties for breaching the employment regulations including fines, imprisonment or deportation. The only way to introduce flexible working arrangements is to obtain direct approval from the Ministry of Labour, a difficult and lengthy process that can take eight or nine months to complete.
The situation is similar in some ways in Israel (whose labour laws were written in 1951), where the working week was recently reduced from 43 hours to 42 hours, without any cuts in pay, under a collective agreement between unions and employers.
One of the difficulties with this change is that numerous employees in Israel are paid by the hour and the complexities of adapting reduced working hours for hourly paid workers were not fully taken into account. This is a practical consideration that has had perplexed employers knocking on the door of law firms, seeking advice.
Still, in a country whose employees work significantly longer hours than their counterparts in Europe and the United States, a shorter working week is considered a welcome step towards better work-life balance.
Time off for breastfeeding stirs controversy in Kenya
Kenya is also grappling with the practical consequences of a change in employment laws, this time requiring employers to give nursing mother’s time off during the working day to breastfeed their babies. This has generated a discussion among politicians, lawyers, the media and celebrities with some commentators praising the government for its commitment to maternal and infant health and others expressing grave reservations about the practicalities and added burden on employers.
Another controversial labour issue in Kenya currently is the minimum wage, which differs in urban and rural areas and recently increased by about 5%. Commentators feel that the increase could have serious implications for certain industries, especially the private security industry. It has become the norm in Kenya for homes and businesses, especially those of national and international companies, to be guarded 24 hours a day but this is only possible while wages are low – a dilemma that highlights the tension between protecting workers’ rights and minimising job losses caused by cost cutting.
The risks and costs of using labour brokers
Meanwhile, in Nigeria and Tanzania, a labour law issue preoccupying many employers, not to mention the labour courts, is labour broking and specifically the issue of who the employer is.
In Nigeria, this used to be a straightforward matter. For many years, the broker was the employer. That has no longer been the case since the National Industrial Court of Nigeria ruled that a sacked worker who went to court had two employers, the labour broker and the end-user.
Since there is a significant gap between what employers and labour brokers pay, this could have expensive implications for employers. Experts suggest a rule of thumb for employers trying to keep their costs down in Nigeria is to keep their distance from day-to-day matters affecting labour-broking employees. This way labour brokers, and not employers, are the ones managing the employees, which reduces the risks for employers.
Although Tanzania does not yet have labour-broking regulations, the position is similar: the entity that has day-to-day control of the employees is considered to be the employer. The risk of the same employee receiving benefits from two employers has prompted some of Tanzania’s largest institutions to move away from labour broking and to start hiring people themselves, even though this is complicated and could virtually double their employee costs.
One country where the law is cut and dried on labour broking is Angola. Employers in that country are discouraged from using the services of labour brokers unless this is temporary and strictly for short periods. Since 2016, the maximum period for hiring temporary workers has been two years. After two years, the employer must hire the person directly and cannot get around this by replacing him or her with someone else as the law prohibits such replacement.
All in all, the discussions at the ELA conference showed that South Africa is far from alone in dealing with employment law challenges such as labour broking, minimum wages and the like. Other countries are in much the same boat and perhaps even navigating more challenging waters than South Africa’s currents.
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