The contract of employment was like the dodo - it existed once upon a time, but no living person had ever seen it.
This was the contention of Professor Rochelle Le Roux, director of the Institute of Development and Labour Law, in her recent inaugural lecture, Employment: A dodo or simply living dangerously?
Le Roux said that, "despite wonderfully creative attempts", to date no scholar, academic or judge had been able to produce a satisfactory definition of the contract of employment.
"The best that can be done is to mix a number of factors together according to some secret recipe, thereby producing a contract of employment from which will emerge a creature called an employee," she said.
Le Roux said it was clear to her from an early stage in her studies that many modern forms of work "can simply not be explained in terms of a contract of employment. Yet the champions of labour law seem determined to regulate only those productive activities that can be accommodated by the contract of employment".
She said if these productive activities could not naturally be accommodated within the contract of employment, they were "artificially beaten into a shape that looks like a contract of employment, using legislative tools and/or jurisprudential imagination".
Her research showed that, in South Africa, the contract of employment, as a concept embracing all forms of wage-dependant labour, reached maturity only towards the third quarter of the 20th century and that the principal division in employment law for most of the 20th century was social rank and status, rather than dependence and independence.
By attempting to transmute all productive activities into employment, employment as an institution would be destroyed, not rescued, Le Roux said.
She extolled the virtues of the guild system, saying this was the primary means for organising work for at least 300 years, from 1100-1400. Some guilds even survived into the 20th century.
"In broad terms, the European guilds were independent, self-governing, mostly city-based organisations in which people shared a trade or profession. These guilds were recognised by local or city governments.
"Often shrouded in mystery and criticised for being patriarchal and for undermining competition, the guild system was nonetheless a great institution. It represented a warranty of quality, provided social solidarity in times of need and produced great architecture, art, roads and canals that are still admired to this day," Le Roux added.
"If a great institution like the guild system, which was deeply embedded in society for more than 300 years, could not survive what was clearly the first wave of globalisation, what can be done to rescue a youthful institution like the contract of employment in the face of globalisation, now reaching tsunamic proportions - or was it always meant to die young?" she asked.
Out of a labour force of about 18 million, including discouraged work seekers, around 6.8 million are unemployed. Of these, 4.5-million are between the ages of 15 and34. Stats SA surveys had shown that approximately 2.1 million people were informally employed, and these people were extremely vulnerable and completely removed from the securities most people associated with standard employment.
Trade unions, she said, could possibly play a role in providing social security, "but because they have a limited capacity, we need to think of a more universal platform of providing such security, such as a basic income grant".
"The number of poor and jobless people is growing," said Le Roux. "They are angry, insecure and bored, and they are young. We might not want to hear them, but the bells are tolling. Have we not reached a stage where the different layers of precautionary principle ask of us to depart from conventional thinking and to go where there is no path to trail, and in doing so imagine and explore truly new labour law landscapes?
"More particularly, has the time not come to accept that employment can neither be the site where the flaws of history are remedied, nor the site where the social risks of life can be absorbed?
"Is the trader, who walks around with his shop on his back, not entitled to at least the same, or even better social protection, as a secretary who is indefinitely employed?"
Hers, she said, was a call for the de-socialisation of employment.
"As long as we link social rights and benefits to employment, we encourage employers to take measures that allow them to avoid labour law. Employees, like all other workers, should labour for wages that reflect the value of their efforts, and not for future social security entitlements that have little bearing on the value of the services rendered."
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