Dear President Ramaphosa
Chief Justice Mogoeng Mogoeng
What are you doing to ensure that this Constitution works for every South African seeking employment?
We thank our honourable Judge for raising several vital issues in his Nelson Mandela speech regarding rights, inequality and in particular, the plight of black people and women in labour markets.
Citing this speech, we ask, if the “authority of government comes from the people through the Constitution” we the people want to know why Government ignores section 23.1 ‘everybody is entitled to FAIR labour practice’ when inequality is enforced and controlled through access to employment?
How do you ignore S23.1 if, as Judge Mogoeng Mogoeng states, ‘information is power’ and employers access job seeker and rival employer wage information by demanding pay slips and cost-to-company from applicants in return for being considered? This is unfair, workers are entitled to and justly deserve what is fair.
Fairness is enshrined in 23.1
RECRUITMENT PAY SECRECY IS UNFAIR
It’s almost as if we seek to take advantage of the ignorance of our people by not doing anything. The greatest facilitator of sustained injustice is keeping people ignorant of what they are entitled to.
Chief Justice Mogoeng Mogoeng
The South African labour market has an employer monopsony power problem obstructing a fair competition for workers.
Employer monopsony is unfair, unfair is unconstitutional, yet no one moves to address this injustice.
Most people only earn money when employed. Those of us without employment contacts and connections must apply for jobs without knowing how much they pay. This marks an iniquitous labour market entry point.
Assuming labour market power they are not lawfully entitled to; most employers, spanning SOEs, NGOs and corporates, obstruct access to wage information thereby disadvantaging job applicant wage negotiating power.
Employers are not prevented from applying wage discrimination when recruiting from the pool of people who have no choice but to apply for work or become poorer.
Workers are systematically disempowered when job seeking and forced to become a statistic for government and fancy-funded inequality presentations. Most of us are black, most of us are women. Is it ironic or planned that our market vulnerability is used against us and continues a legacy of apartheid wage oppression?
Let’s make it our business to make sure there is employment and remuneration equity. We have to confront this tendency of paying black people less than we pay white counterparts; of paying women less than men even if they do the same job.
Chief Justice Mogoeng Mogoeng
If all employers and recruiters were virtuous or lawful, it’s possible we wouldn’t have inequality – they would simply do what is right each time they made a wage offer.
Instead, they adopt a vindictive recruitment value chain applying wage discrimination to institute inequality.
Their profit-driven actions can be regulated, and result in consequences if the government is indeed willing to protect Constitutional rights. Currently unfair firms do the following:
- Employers create information gaps when advertising vacancies without being upfront about pay. This places employer interests above those of job applicants.
- Recruiters contact applicants or headhunt suitable talent asking them about their pay expectations without being transparent about a salary range. This deepens the information gap and gives the potential employer unfair leverage during wage negotiation.
- Recruiters ask applicants about their pay history, using this to restrict or reinforce low pay expectations. Information shared by applicants restricts them to a particular range: if you’re a black woman, your offer is likely to be unfair.
- Recruiters and employers demand that applicants disclose rival firm pay slips when competing in the same pool for talent. This creates a Constitutionally unfair and anti-competitive labour environment restricting workers to apartheid wage patterns.
Shameless disregard for the Constitutional imperatives that could transform society is one of the issues that frustrates Constitutionalism as a transformative tool.
Chief Justice Mogoeng Mogoeng
Inequality begins during recruitment and is transacted at wage negotiation. Inequality is as a result of what workers agree to.
When we apply to employers who are not transparent about pay, we can be coerced into accepting unfair offers, contributing to inequality.
Very little is going to be accomplished for as long as we allow our people to be ignorant of their rights in the Constitution.
Chief Justice Mogoeng Mogoeng
You can’t fight for what you don’t know.
You can’t fight for what you don’t touch.
It’s almost as if we seek to take advantage of the ignorance of our people by not doing anything.
The greatest facilitator of sustained injustice is keeping people ignorant of what they are entitled to
This letter, is our attempt to draw your attention to workers’ humanity and recommendations for redress. We look to you, to forever alter the suppression of our Constitutional rights to fairness, to dignity and to pursue the best economic opportunity possible or available.
Recruitment, as a labour market function, must be regulated to ensure efficiency and consequences for those who obstruct constitutional rights.
In addition to Constitutional fairness, the Competition Act clearly states workers, employers and consumers have equal market power and that interests must be balanced.
The perception that a right to profit must trump worker Constitutional rights is incorrect. Employers discriminate when they ask job applicants about pay expectations, this information has no relevance when employers apply pay secrecy.
When employers face no consequences for practising wage discrimination, inequality predictably flourishes.
“So be watchful and expose anybody that you know who would want to walk on the corpses of others in order to ascend to authority.”
Chief Justice Mogoeng Mogoeng
Auditor General, City of Tshwane and the Competition Commission have ignored S23.1 when advertising vacancies, with the latter going so far as to make it compulsory for job applicants to submit cost to company information. This means the Competition Commission breaches both the Constitution and the same law they are custodians of, namely the Competition Act.
Such reneging of duty results in a widespread culture of collusion, exploitation and profiteering at the cost of worker rights. Recruitment and HR firms such as Kelly, O’Brien, People Solved, Nurturing Futures, Callforce and the South African Board of People Practices (SABPP) collude, price-fix and poach in labour markets they are meant to compete in fairly.
The Public Protector’s office failed to honour the investigation they started in 2018, cheating workers out of their rights by abdicating responsibility for investigating the Competition Commission back to the maleficent, constitutionally dissident Commission.
The Commission for Gender Equity has claimed an investigation into how income inequality enters labour markets but has as of yet, delivered nothing.
People of South Africa do not accept that it is fair for the government, SOEs and employers to obstruct our rights thus and render the labour force rightless and exploited.
Please honour the legacy of Madiba by giving practical expression to our constitution.
Chief Justice Mogoeng Mogoeng
May generations to come never curse you for your cowardice and failure to do what Madiba suffered for you and I to endure.
