NUPSAW CCMA Employer Western Cape: Union Seeks True Employer Ruling for CHWs

• NUPSAW has referred a dispute to the CCMA to determine the legal employer of community health workers in the Western Cape.
• These health workers are currently employed by NPOs contracted by the Western Cape Department of Health and Wellness, which states it has no plans for insourcing.
• The union's referral is made under section 200A of the Labour Relations Act, seeking to establish the true employer regardless of written contracts.
• Workers are protesting for permanent jobs, citing lack of medical aid, job insecurity, and insufficient wages (around R6,300 monthly) as key concerns.
• The department maintains it procures services via tender and NPOs are responsible for employment and management, while it funds stipends.

This CCMA referral under LRA Section 200A could set a precedent for determining the true employer of contract workers, impacting compliance obligations and potential liabilities for both NPOs and government departments utilizing outsourced services.

The National Union of Public Service and Allied Workers (NUPSAW) has initiated proceedings with the Commission for Conciliation, Mediation and Arbitration (CCMA) to formally determine the actual employer of community health workers (CHWs) operating in the Western Cape. This action follows a series of protests staged by these workers, supported by the union, across Cape Town throughout the current month, advocating for their permanent employment.

These community health workers are presently engaged through various non-profit organizations (NPOs), which themselves operate under contracts with the Western Cape Department of Health and Wellness. Despite the workers' demands for insourcing, the department has communicated that it currently holds no plans to permanently integrate them into its workforce. A recent demonstration saw approximately 60 individuals picketing outside the Zolani Centre in Nyanga, with participants including workers from NPOs serving areas such as Lusaka, Lower Crossroads, KTC, and New Rest.

NUPSAW's referral to the CCMA is specifically lodged under section 200A of the Labour Relations Act. This particular section empowers the CCMA to ascertain the true employer of workers, irrespective of the terms stipulated in their written contracts. Vuyani Shwane, NUPSAW's provincial office manager, confirmed that the union is seeking a definitive ruling on this matter.

Conversely, Dwayne Evans, a spokesperson for the Western Cape Department of Health and Wellness, clarified the department's position, stating that the services provided by the community health workers were procured through a transparent and competitive tender process. Evans further explained that while the department is responsible for providing funding for the workers' stipends, ensuring compliance with national minimum wage requirements, the contracted NPOs bear the responsibility for both the employment and day-to-day management of these health workers.

The push for permanent employment stems from significant concerns among the community health workers regarding job security and benefits. Jabu Khanyile, a provincial organiser for NUPSAW, emphasized the workers' desire for "full absorption," highlighting that such a change would provide crucial benefits like medical aid, which is currently unavailable to them. He noted that workers often resort to self-care when ill, lacking formal healthcare coverage.

Workers also face annual anxiety over contract renewals, leading to a pervasive sense of instability. Salaama Abrahams, one of the health workers, revealed that most earn approximately R6,300 per month and are weary of the precarious nature of NPO employment, where contract non-renewal is a constant threat. Khanyile also pointed out that current earnings are often insufficient to cover basic expenses, with many children of these workers relying on school feeding schemes. This CCMA referral under LRA Section 200A could set a precedent for determining the true employer of contract workers, impacting compliance obligations and potential liabilities for both NPOs and government departments utilizing outsourced services.

This CCMA referral under LRA Section 200A could set a precedent for determining the true employer of contract workers, impacting compliance obligations and potential liabilities for both NPOs and government departments utilizing outsourced services. Lawyers should advise clients on the risks of deemed employment relationships and the implications for benefits, job security, and collective bargaining.

Source: Original reporting via GroundUp