03
Feb

Banks and Pakistanians

Devan Naidoo writes : I work for a bank with its Head Office in Sandton. In the last six months my Employer has brought a large number of Pakistanian staff into the company. Their work permits were organised by the bank and the bank has bought up a number of buildings where these workers are being accommodated. What is clear is that they have been brought into the company to replace existing workers because they are much cheaper to pay and the agreement between the bank and the Pakistanian Agents is that these workers will not join Trade Unions and go on strike. Is this fair?

Devan, the short answer is that it is definitely not fair. However your question should rather be is it legal? Ultimately the CCMA, and the Labour Courts have not been specific on whether planned labour replacement is either illegal or unfair. It depends very much on how the labour replacement scheme is established, whether work permits obtained are legal, whether there has been sufficient notice to existing employees and whether existing employees have been provided with the same amount and level of skills development to be competitive with the Pakistanian employee’s now on your banks premises.

It is also of course very much dependent on what has ensued in negotiations with any Trade Unions, which may be active in your company.

The single principle to bear in mind is that employees have a constitutional right to be protected from labour replacement activities from overseas or other countries if the same skill set exists amongst South African citizens who are unemployed. South Africans can therefore challenge such action both in Labour Relations forums and also in our Constitutional Court.  The bank would have to show that they first sought to either employ from amongst the South African unemployed masses, or to promote from within or develop the skills from within, on a reasonable basis and within a reasonable time frame prior to taking the action of instituting labour replacement as you allege.

What also seems unfair is that your employer has offered free or subsidised accommodation to these people from Pakistan in exchange for cheaper labour rates. If this is the case and those same benefits are not available to existing employee’s then this is definitely unfair and can be challenged.

Ultimately though focus on why your employer has taken such drastic action. South Africa is characterized by low productivity amongst its workforce, the highest labour rates in the world, and labour legislation allowing for the most militant of action to be taken, always in favor of the employee and never the employer. Can you blame any employer for wanting to finally stand their ground seeking more compliant employees with a better work ethic who understand the value of hard work?