On the 5th May, 2020, the Judge President of the Labour Court rejected an application for an urgent interdict by submitted on the 27th March, 2020, by the National Union of Public Servants and Allied Workers on behalf of Extended Public Works Programme (EPWP) workers against the Gauteng Provincial Government’s Department of Infrastructure Development (DID). The urgent interdict sought to suspend the termination of EPWP worker contracts. The termination notices had been received in the most coldly impersonal manner less than two weeks before the termination were to take effect: 31st March, 2020, five days after the Lockdown came into force.
The Judge President’s response is that a hearing would be scheduled “after Lockdown.” Unless the Judge President knows something that the rest of the country doesn’t, the rejection of the application amounts to an indefinite postponement of a case that every reasonable person would regards as urgent. The case may be heard this year, 2021, or even 2022 – that is how much longer some health experts suggests Covid19 will still be an unwelcome and lethal guest.
Nupsaw brought this case to the Labour Court on behalf of workers who have been the victims of years of exploitation. They represent 1004 workers of the 5000 originally signed up under this scheme by DID in 2013. Ultimately this case is being fought on behalf of nearly a million workers across the country drawn into similar schemes as the EPWP system – a system riddled with corruption and opportunities for self enrichment.
The EPWP system in its various incarnations is to the public sector in the post-apartheid era as the migrant labour system was to the mining industry in the colonial and apartheid eras. It is in fact a cheap labour scheme serving the democratically elected ANC government with the same cynicism and condescending pretentiousness as the migrant labour system served the mining industry and the colonial and apartheid regimes. It pretends to provide work when in reality it recycles poverty amongst the millions condemned to penury by the ANC government’s neo-liberal capitalist policies.
The length the ANC government has gone to not only to maintain and legitimize this system, but to circumvent and subvert its obligations under its own labour legislation, is truly breathtaking. A study of the conditions of employment of EPWP workers reads like a conversation between Alice and Humpty Dumpty in Alice in Wonderland – words are given whatever meaning suits government’s cynical aims.
To deprive these workers of the legislative conquests of the struggle against apartheid they are deliberately not classified as employees. Instead they are designated variously as “beneficiaries”, “participants” and “volunteers.” Just as the government maintains the fiction that they are not employees, so their jobs are redefined as “job opportunities”. The jobs are permanent, but the opportunity to perform them is temporary – their duration ranging from 3 to 12 months.
They do not earn salaries but “stipends” or “allowances” set at a level, R2 200 a month, less than two thirds of the official minimum wage of R3 500 and nearly ten times less than the entry level public service salary. By not classifying them as employees, the workers enjoy no benefits like medical aid, housing allowance, overtime, maternity or paternity leave. The purpose is to exclude the workers from the benefits and protection of the Labour Relations, Basic Conditions of Employment and Employment Equity Acts.
Even if the circumstances under which this case was brought were discounted, the EPWP workers would be entitled to revolt against this outrage. But the decision of the Judge President is inexplicable on the merits given the following facts:
- The 1 004 employees on behalf of whom the application was made have all been on the EPWP scheme since 2013. By the admission of the MEC’s Chief of Staff in a meeting with the EPWP Gauteng Forum in the DID Johannesburg offices on 9th March, 2020, this has created a legitimate expectation of permanent employment.
- The status of all these workers conforms to the definition of an employee as set out the LRA Section 200 (A)
- The DID abandoned the negotiations it invited the EPWP Gauteng Forum and Nupsaw to in line with the responses of the Ministry of Finance to the memorandum delivered at the Union Buildings on 13th February 2020, the undertakings of the Deputy Director General, Ms Masabata and the MEC’s Chief of Staff on 9th March 2020, to continue negotiations with the EPWP Gauteng Forum on 10th March, 2020 and the circular of the Minister of Public Works and Infrastructure instructing all departments to retain workers whose contract were still in force when the Lockdown took effect.
- The struggle of the EPWP workers follows the precedent set by the earlier struggle for permanent jobs by the Community Health Workers. The CHWs have been rightly lauded for their heroism in the frontline of the battle against Covid19. Under Nupsaw’s leadership, the Gauteng CHW workers won recognition as employees as defined by the LRA from the Labour Court. They have accordingly been loaded onto the Persal system of the public service as permanent employees.
- What the public is not aware of is that even after winning recognition as permanent employees, the CHW workers remain second class citizens. Whereas all public sector workers are remunerated on the basis of collective agreements signed in the Public Service Coordinating Bargaining Council, CHWs’ remuneration is pegged at the official minimum wage of R3 500, six times lower than the public service entry level salary.
The SMS termination notices were sent without even the courtesy of a direct engagement with the workers affected. In fact it was the workers themselves who had approached management for negotiations on their demand for permanent employment and a minimum wage of R12 500 or level 5 of the public service salary scale equivalent. The Gauteng EPWP Workers Forum was formed precisely for the purpose of presenting their demands to management.
The effect of the Judge President’s decision is that thousands of EPWP workers and their families have been thrown into destitution by an act of callous cruelty by the Gauteng Provincial Government. Despite the fact that the scheme is consciously designed to guarantee a return to the swamp of unemployment the “beneficiaries” should be grateful to have been lifted out of temporarily, no provision is made for contributions towards the Unemployment Insurance Fund. By defining those under the scheme as something different from the employees they are, the government itself disguises itself as something other than an employer, relieving itself from the obligation all employers are under to ensure contributions are made towards UIF.
This has happened precisely at a time when the Lockdown Regulations have effectively snuffed out the possibility of eking out an existence in the informal sector. If the Judge President has applied his mind to this matter at all, it would appear he is coldly indifferent. Only one inference can be drawn from this inhumane decision: that the protection of the lives of the judiciary from the threat of Covid19, takes precedence over the threat of starvation faced by these workers. Judges are more equal than cleaners, gardeners and administrators it would appear.
We are daily witnesses to the recognition the entire world has bestowed on all workers particularly those in the public service, as essential and for literally putting their lives on the line for all of us. in South Africa 12th May was marked as International Nurses Day with stories that correctly hailed the sacrifices health workers are making.
Yet exactly one month before the Lockdown was announced, the government announced a budget that, apart from cuts in health spending, provided for the theft of salary increases due to public servants on 1st April 2020 – the third year of a three-year collective agreement signed in 2018. Robbers are notorious for offering victims the choice: “your money or your life?” In a blatant act of illegality, this government demands public service workers’ money AND their lives.
The theft of public sector workers salaries, the second class public service status forced on CHWs and the dismissal of thousands of EPWP worker are all linked together by the government’s adherence to the religion of neo-liberal capitalism on whose altar it is prepared to sacrifice the entire collective bargaining for which so many had laid down their lives. The private sector bosses, forever looking for an opportunity to undermine wages and conditions, will be watching this with relish
The Judge President has an opportunity to ensure justice is done for the most downtrodden and exploited sector of public service workers. He must emerge from his Covid19 bunker and set down a hearing for these workers. The workers are entitled to protection from the indignity of poverty, to permanent jobs and decent pay to feed themselves and their families.
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