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The Regime of Contract in South African Retailing: A History of Race, Gender, and Skill in Precarious Labor

Published online by Cambridge University Press:  28 April 2016

Bridget Kenny
Bridget Kenny*
Affiliation:
The University of the Witwatersrand, Johannesburg
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Abstract

This article examines the history of precarious labor within the retail sector in South Africa since the early decades of the twentieth century. It argues that a “regime of contract” characterized through a bifurcated legal apparatus for black and white workers and skill segmentation naturalized by race and gender can be used to track the continuities as well as explain the changes within forms of precarious labor in the present. The history of struggle for regulation as well as employer efforts to refragment the employment contract have been a key part of this story. This article suggests that “regimes of contract” can be used to develop comparative and transnational study to explain precarious labor regimes globally.

Type
Precarious Labor in Global Perspectives
Information
International Labor and Working-Class History , Volume 89: Precarious Labor in Global Perspectives , Spring 2016 , pp. 20 - 39
Copyright
Copyright © International Labor and Working-Class History, Inc. 2016 

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References

NOTES

1. Guy Standing, The Precariat: The New Dangerous Class (London and New York, 2011); Leah F. Vosko, Martha MacDonald, and Iain Campbell, eds., Gender and the Contours of Precarious Employment (London and New York, 2009); Arne Kalleberg, Good Jobs, Bad Jobs: The Rise of Polarized and Precarious Employment Systems in the United States, 1970s–2000s (New York, 2013); Kalleberg, Arne L., “Precarious Work, Insecure Workers: Employment Relations in Transition,” American Sociological Review 74 (2009): 1–22 CrossRefGoogle Scholar; Leah F. Vosko, Managing the Margins: Gender, Citizenship and the International Regulation of Precarious Employment (New York 2010); Standing, Guy, “Global Feminization Through Flexible Labor: A Theme Revisited,” World Development 27 (1999): 583–602 CrossRefGoogle Scholar; Anne Allison, Precarious Japan (Durham and London, 2013).

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4. See forthcoming special issue of the Global Labour Journal on Standing's The Precariat.

5. Martin Chanock, The Making of South African Legal Culture, 1902–1936: Fear, Favour and Prejudice (Cambridge, 2004 [2001]), 23–25, uses the concept of “legal culture” to differentiate his analysis of state making viz. legal and regulatory practice from either a view of law as ideology or as simply embedded in social and political context. He argues for the productive capacity of law to create terrains of meaning in its relation to governance and administration at the same time that the formalism of law and its claim to authority carries weight requiring analysis.

6. See Karl Polanyi, The Great Transformation (Boston, 1944) for the classic statement on the importance of the relationship between market and regulation in defining politics. For the application of Polanyi to precarious employment, see, for example, Edward Webster, Rob Lambert, and Andries Bezuidenhout, Grounding Globalization: Labour in the Age of Insecurity (Oxford, 2008). Here, I am emphasizing as well the discursive relationship between market and regulation that plays out over time in debates and in practice around particular regimes of labor. Chanock, The Making of South African Legal Culture, 12. Chanock writes: “The law of contract does, of course, embody a millennial dream of a kind, of the voluntary reaching of agreement, without oppression, between freely contracting parties, but it also embodies an ideology of compulsion which … was to be of great significance as a legal weapon in the South African social order, as much a part of domination as the power to execute and imprison.”

7. Again, I find Chanock, The Making of the South African Legal Culture, invaluable here.

8. Chanock, The Making of South African Legal Culture.

9. Robert H. Davies, Capital, State and White Labour in South Africa, 1900–1960: An Historical Materialist Analysis of Class Formation and Class Relations (Brighton, 1979); Edward Webster, Cast in a Racial Mould: Labour Process and Trade Unionism in the Foundries (Johannesburg, 1985); Iris Berger, Threads of Solidarity: Women in South African Industry 1900–1980 (Bloomington, 1992); Jacklyn Cock, Maids and Madams: Domestic Workers Under Apartheid (Johannesburg, 1980); Owen Crankshaw, Race, Class and the Changing Division of Labour Under Apartheid (London, 1997).

10. Specifically in 1907, 1913, and 1922 “The Rand Revolt.” The Industrial Conciliation Act, 1924, forms the critical piece of legislation. See Jeff Lever, “Capital and Labour in South Africa: The Passage of the Industrial Conciliation Act, 1924,” in Essays in Southern African Labour History, ed. E. Webster (Johannesburg, 1978): 82–110; Jeremy Krikler, The Rand Revolt: The 1922 Insurrection and Racial Killing in South Africa (Johannesburg and Cape Town, 2005).

11. Martin Chanock, “South Africa, 1841–1924: Race, Contract, and Coercion,” Masters, Servants, and Magistrates in Britain and the Empire, 1562–1955, ed. Douglas Hay and Paul Craven (Chapel Hill, 2004), 362.

12. Davies, Capital, State and White Labour in South Africa; Edward Webster, ed., Essays in Southern African Labour History (Johannesburg, 1978).

13. This is an administrative term used under apartheid and maintained in official census classification in post-apartheid South Africa to describe a group of people historically classified, in part, as ‘mixed race’ but also including, for instance, people of KhoiSan descent. Zimitri Erasmus argues that the term references people with a common set of historical experiences, such as slavery and creolization, as well as of oppressive and partial preferential treatment under apartheid. I maintain the South African spelling and capitalization to mark the specificity of its usage. See Zimitri Erasmus, ed., Coloured by History, Shaped by Place: New Perspectives on Coloured Identities in Cape Town (Cape Town, 2001). For a critique of post-apartheid ongoing racial classification see Gerhard Mare, Declassified (Johannesburg, 2014).

14. Wolpe, Harold, “Capitalism and Cheap Labour Power in South Africa: From Segregation to Apartheid,” Economy and Society 1 (1972): 425–56CrossRefGoogle Scholar; Leggasick, Martin, “Legislation, Ideology and Economy in Post-1948 South Africa,” Journal of Southern African Studies 1 (1974): 5–35 CrossRefGoogle Scholar.

15. Frederick Cooper, Decolonization and African Society: The Labor Question in French and British Africa (Cambridge: Cambridge University Press, 1996).

16. Chanock, “South Africa, 1841–1924,” 346–7.

17. Douglas Hay and Paul Craven, eds., Masters, Servants, and Magistrates in Britain and the Empire, 1562–1955 (Chapel Hill, 2004).

18. Chanock, The Making of South African Legal Culture, 444.

19. Chanock, “South Africa, 1841–1924,” 339; and see Chanock, The Making of South African Legal Culture, 425, for categories of white labor, including salesmen.

20. Chanock, The Making of South African Legal Culture, 444.

21. Ibid., 424–6.

22. Chanock, “South Africa, 1841–1924,” 359.

23. Cooper, Decolonization and African Society; Richard Rathbone, “West Africa, 1874–1948: Employment Legislation in a Nonsettler Peasant Economy,” in Masters, Servants, and Magistrates in Britain and the Empire, 1562–1955, ed. Douglas Hay and Paul Craven (Chapel Hill, 2004), 481–97; and see David M. Anderson, “Kenya, 1895–1939: Registration and Rough Justice,” in Masters, Servants, and Magistrates in Britain and the Empire, 1562–1955, 498–528.

24. Chanock, The Making of South African Legal Culture.

25. Davies, Capital, State and White Labour in South Africa; Jon Lewis, Industrialisation and Trade Union Organisation in South Africa, 1924–55: The Rise and Fall of the South African Trades and Labour Council (Cambridge, 1984).

26. Chanock, The Making of South African Legal Culture, 460; for other countries, see Owens, Rosemary J., “Women, Atypical Work Relationships and the Law,” Melbourne University Law Review 19 (1993): 399–430 Google Scholar; Alice Kessler-Harris, Out to Work: A History of Wage-Earning Women in the United States (New York, 1982); Nancy Folbre, Who Pays for the Kids? Gender and the Structure of Constraint (London, 1994); Leah F. Vosko, Temporary Work: The Gendered Rise of a Precarious Employment Relationship (Toronto, 2000).

27. Chanock, The Making of South African Legal Culture.

28. The Industrial Legislation Commission of 1935, quoted in Chanock, The Making of South African Legal Culture, 461.

29. Chanock, The Making of South African Legal Culture, 461; and see Berger, Threads of Solidarity.

30. Kenny, Bridget, “Servicing Modernity: White Women Shop Workers and Changing Gendered Respectabilities, 1940s–1970s,” African Studies 67 (2008): 365–396 CrossRefGoogle Scholar; Berger, Threads of Solidarity; Norman Herd, Counter Attack: The Story of the South African Shopworkers (Cape Town, 1974); Baruch Hirson, Yours for the Union: Class and Community Struggles in South Africa (Johannesburg, 1990).

31. Herd, Counter Attack; Berger, Threads of Solidarity; Peter Alexander, Workers, War and the Origins of Apartheid: Labour and Politics in South Africa, 1939–48 (Oxford, 2000).

32. Herd, Counter Attack.

33. Alexander, Workers, War and the Origins of Apartheid.

34. Bureau of Census and Statistics, First Census of Distribution and Service Establishments, 1946–1947, Preliminary Report, No. 40, General Dealers (Departmental) (Pretoria, 1951), Table 6, p. 8.

35. Kenny, “Servicing Modernity”; for the relevance of occupational unionism to service work in the United States, see also Dorothy Sue Cobble, Dishing It Out: Waitresses and Their Unions in the Twentieth Century (Chicago, 1991).

36. Union Office of Census and Statistics, Official Year Book of the Union and of Basutoland, Bechuanaland Protectorate, and Swaziland, No. 21–1940 (Pretoria, 1940), 295.

37. Ibid. This paragraph also appears verbatim in the Yearbook for 1946, Union Office of Census and Statistics, Labour and Industrial Conditions, Chapter VI, Official Year Book of the Union of South Africa and of Basutoland, Bechuanaland Protectorate and Swaziland, No. 23–1946 (Pretoria, 1947), 58.

38. Union Office of Census and Statistics, Labour and Industrial Conditions, 58.

39. Ellen Hellmann, Sellgoods: A Sociological Survey of an African Commercial Labor Force (Johannesburg, 1953), 3.

40. Ibid., 3.

41. Hellmann, Sellgoods.

42. Ibid., 9.

43. Union of South Africa, Wage Determination No. 170 (1953) GGE 174(5178) of 6 November; Republic of South Africa, Wage Determination No. 223 (1961) GN 639 GG 1(78) of 8 September. Republic of South Africa, Wage Determination No. 302 (1968) GN R1695 GG 39(2163) of 20 September. Republic of South Africa, Wage Determination No. 356 (1973) GN R1829 GG 100(4045) of 5 October.

44. AH 1494/Da 16.2—Db 1.2, Dison, L.R. “Legal Opinion on Tea-Breaks for Part-Timers”; letter to National Union of Distributive Workers, October 23, 1963: 2; B. Robarts, “Ref: Rest Intervals—Part-time Employees”, letter to Mr. Altman, June 25, 1963; J.R. Altman, “Rest Intervals—Part-time Employees”, letter to Miss Robarts, June 27, 1963.

45. Kenny, “Servicing Modernity”; see, for other contexts, Vosko, Temporary Work; Fudge, Judy and Vosko, Leah F., “Gender, Segmentation and the Standard Employment Relationship in Canadian Labour Law, Legislation and Policy,” Economic and Industrial Democracy 22 (2001): 271–310 CrossRefGoogle Scholar; Dorothy Sue Cobble and Leah F. Vosko, “Historical Perspectives on Representing Nonstandard Workers,” in Nonstandard Work: The Nature and Challenges of Changing Employment Relations, ed. F. Carre, M. A. Ferber, L. Golden, and S. A. Herzenberg (Ithaca, NY, 2000).

46. Union of South Africa, Wage Determination No. 38 (1931) GN 1150 GG 4353 of 10 July.

47. Kenny, Bridget, “Mothers, Extraordinary Labour, and Amacasual: Law and Politics of Nonstandard Employment in the South African Retail Sector,” Law & Policy 31 (2009): 282–306 CrossRefGoogle Scholar.

48. Campbell, Iain and Burgess, John, “Casual Employment in Australia and Temporary Employment in Europe: Developing a Cross-National Comparison,” Work, Employment and Society 15 (2001): 171–184 CrossRefGoogle Scholar; Campbell, Iain and Burgess, John, “A New Estimate of Casual Employment?” Australian Bulletin of Labour 27 (2001): 85–108 Google Scholar; Bowles, Paul and MacPhail, Fiona, “Introduction to the Special Issue on Pathways from Casual Work to Economic Security: Canadian and International Perspectives,” Social Indices Research 88 (2008): 1–13 CrossRefGoogle Scholar; Standing, Guy, “Economic Insecurity and Global Casualisation: Threat or Promise?” Social Indices Research 88 (2008): 15–30 CrossRefGoogle Scholar.

49. Campbell and Burgess, “A New Estimate of Casual Employment?” 176; Chanock, The Making of South African Legal Culture.

50. Kenny, “Mothers, Extraordinary Labour, and Amacasual.”

51. This was also the same as in Australia; see Campbell and Burgess, “A New Estimate of Casual Employment?”.

52. In Australia this practice is called “casual loading.” See Owens, “Women, ‘Atypical Work Relationships and the Law”; Campbell and Burgess, “Casual Employment in Australia.”

53. Kagan, M., “Seasonal Labour in the Commercial Distributive Trade,” New Day 31 (August 1975): 17Google Scholar.

54. AH 1601/Ua 41.2.7, letter to Mr. D.A. Smith, Regional Personnel Manager, Wits Region, OK Bazaars, from M. Kagan, December 15, 1972.

55. Kenny, “Mothers, Extraordinary Labour, and Amacasual.”

56. At this point, the NUDW organized a separate union for Indian and Coloured members, NUCAW.

57. Letter to A.H. Fife from M. Kagan, August 10, 1970, AH 1601/Ua41.2.5.

58. Job reservation provided for legal mechanism of “reserving” certain job categories in certain industries to whites.

59. Kenny, “Servicing Modernity”; see also “Effective Rate for the Job Urged” in New Day 26 (July 1970)Google Scholar, 6; Crankshaw, Race, Class and the Changing Division of Labours.

60. “O.K. Orange Grove—Report on Temporary Work Stoppage,” by Mrs. Z. Farrah, organizer, dated May 15, 1972, in AH 1601/Ua 41.7 Miscellaneous—OK, Box 41.

61. “Effective Rate for the Job Urged,” New Day Vol. 26, July 1970, 6Google Scholar.

62. Kenny, “Servicing Modernity.”

63. Emma Mashinini, Strikes have Followed Me All my Life (New York, 1991), 29.

64. Ibid.

65. Kenny, “Servicing Modernity”; Kally Forrest, Asijiki: A History of the South African Commercial, Catering and Allied Workers Union (Johannesburg, 2005).

66. The independent black trade union movement reemerged with a strike wave in 1973. Following labor and student unrest in the 1970s, the apartheid state set up the Wiehahn Commission to investigate labor law reform. In 1979, the commission report recommended inclusion of black workers as employees and the recognition of black workers' trade unions as a means of incorporating and disciplining workers. It had the opposite effect; trade unions used their rights for recognition effectively to win major wage and antidiscrimination demands. Ccawusa was one of these unions; see Johann Maree, The Independent Trade Union Movement, 1974–1984: Ten Years of the South African Labour Bulletin (Johannesburg, 1987).

67. Kenny, Bridget, “Claiming Workplace Citizenship: ‘Worker’ Legacies, Collective Identities and Divided Loyalties of South African Contingent Retail Workers,” Qualitative Sociology 30 (2007): 481–500 CrossRefGoogle Scholar.

68. Mashinini, Strikes have Followed Me, 39–40.

69. Forrest, Asijiki.

70. In 1994, South Africa had its first democratic elections. Labor law reform was one of the key pillars of the democratic transition. See Marlea Clarke, Shane Godfrey and Jan Theron, “South African Labour Legislation: Protection for Casual Workers,” Women on Farms Project, Stellenbosch University (unpublished mss., 2003), 2; see also Mahmood Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton, 1996); Franco Barchiesi, Precarious Liberation: Workers, the State and Contested Social Citizenship in Postapartheid South Africa (Albany, NY, 2011).

71. This pattern was similar to what happened in Australia, see Campbell and Burgess, “Casual Employment in Australia”; Campbell and Burgess, “A New Estimate of Casual Employment?”; Owens, Rosemary J., “The ‘Long Term or Permanent Casual’: An Oxymoron or ‘a Well Enough Understood Australianism’ in the Law,” Australian Bulletin of Labour 27 (2001): 118–36Google Scholar.

72. For students as casuals, see “Super A—Only Casual Power (and Sometimes Family) Keeps Store's Checkouts Ringing on Saturdays,” Supermarket & Retailer 27 (1980): 9Google Scholar; This trade journal also mentioned how casual employment, particularly in evening hours, was an entry point for managers-in-training. “Head Start for Top Chain Store Manager Was Checkout Porter's Job,” Supermarket & Retailer 27 (1980): 11Google Scholar. See also Supermarket & Retailer 27 (1980): 9–12 Google Scholar; “Non-Permanent Staff—Keeping Them in the Family at the OK,” Supermarket & Retailer 27 (1980): 23Google Scholar.

73. Kenny, “Mothers, Extraordinary Labour, and Amacasual.”

74. See “Agreement, SACCAWU/ Shoprite Checkers Supermarkets/Meat Markets, Hyperama/Rainbow Finance,” June 30, 1999; “Job Security Agreement, OK Bazaars/SACCAWU,” February 26, 1996; “Agreement, Shoprite Checkers/SACCAWU, Dealing with the Implementation of Flexi-time Work and the Conditions of Employment which Apply to Such Work,” June 6, 1996. Copy of agreements in author's possession.

75. Campbell, Iain and Brosnan, Peter, “Labour Market Deregulation in Australia: The Slow Combustion Approach to Workplace Change,” International Review of Applied Economics 13 (1999): 356CrossRefGoogle Scholar.

76. Kenny, “Mothers, Extraordinary Labour, and Amacasual”; cf. Owens, “The ‘Long Term or Permanent Casual’”; Campbell and Burgess, “Casual Employment in Australia.”

77. Kenny, “Claiming Workplace Citizenship.”

78. Republic of South Africa, Sectoral Determination No. 9, Wholesale and Retail Sector (2002).

79. In South Africa, the terminology is “labor broking.”

80. Paul Benjamin, Sector Working Paper No. 292: Law and Practice of Private Employment Agency Work in South Africa (Geneva, 2013); see also Paul Benjamin, “The Persistence of Unfree Labour: The Rise of Temporary Employment Agencies in South Africa and Namibia,” in Temporary Work, Agencies and Unfree Labour: Insecurity in the New World of Work, ed. Judy Fudge and Kendra Strauss (New York, 2014), 118–42.

81. Benjamin, Sector Working Paper No. 292; Jan Theron with Shane Godfrey and Peter Lewis, “The Rise of Labour Broking and Its Policy Implications,” Development and Labour Monograph Series, 1/2005 (Cape Town, 2005), 4. In the context of changes to influx control, Theron, Godfrey, and Lewis write that “It is probably not a coincidence … that labour brokers were supplying unskilled workers to some of the sectors that previously relied on recruitment agencies,” 5.

82. Benjamin, Sector Working Paper No. 292.

83. Quoted in Theron, Godfrey, and Lewis, “The Rise of Labour Broking,” 49, footnote 18.

84. Roux, Rochelle Le, “The Evolution of the Contract of Employment in South Africa,” Industrial Law Journal 39 (2010): 149Google Scholar.

85. Benjamin, Sector Working Paper No. 292, 3. The National Economic, Development and Labour Council (NEDLAC) is a statutory multiparty stakeholder body that negotiates economic policy in South Africa.

86. Adcorp Employment Index, November, cites a figure of 6.8 percent of total employment in just labor brokers in South Africa for 2010 (Cape Town, 2010), 2: http://www.adcorp.co.za/Industry/Pages/Adcorp'sEmploymentIndex.aspx (accessed April 29, 2014).

87. Kenny, “Claiming Workplace Citizenship”; Bridget Kenny, “Citizen Wal-Mart? South African Food Retailing and Selling Development,” in New South African Review 4, ed. G. Khadiagala et al. (Johannesburg, 2014), 56–74.

88. Kenny, “Claiming Workplace Citizenship.”

89. See Vitapront Labour Brokers CC v. Saccawu and others 2000 2 BLLR 238 (LC) in which the Labour Court ruled against a claim of an unfair dismissal by Saccawu when the court affirmed the workers were employed on fixed term contracts with the broker.

90. In 2002, an amendment to the LRA was meant to tighten up the use of agency work as disguised employment, but Benjamin, Sector Working Paper No. 292, finds that judges still interpreted the temporary employment agency clause literally, and therefore did not recognize dismissal, for if a worker was employed by an agency, he or she could not be dismissed by the client firm. Only in 2010 did Labour Court judges begin to shift judgments to try to protect job security.

91. Cosatu et al., “Cosatu, Fawu, Nehawu, Num, Numsa, Saccawu, and Satawu submission on Labour Broking,” report presented to South African Parliamentary Portfolio Committee on Labour, August 26, 2009: http://www.cosatu.org.za/show.php?ID=2237 (accessed May 27, 2015).

92. See Benjamin, Sector Working Paper No. 292. Interestingly, a total ban on labor brokers, argues Benjamin, would have been opposed in the courts on the basis of the constitutional right to choose one's trade, occupation, or profession freely.

93. Oupa Bodibe, The Extent and Effects of Casualization in Southern Africa: Analysis of Lesotho, Mozambique, South Africa, Swaziland, Zambia and Zimbabwe (Johannesburg, 2006).