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Massive victory for restaurant waiters
By Helen Bamford
Oct. 23 — Restaurants throughout South Africa could be
forced to improve the way they treat waiters and bar staff, following
a Labor Court ruling in Cape Town.
For decades, waiters and bar staff have had to rely on tipping by customers
for most if not all of their income and have worked under extremely
uncertain conditions with little job security and barely any recourse
to the law. But this could be set to change.
In a precedent-setting case, the Labor Court has ruled that waiters
should be seen as permanent members of staff rather than “independent
contractors” with no rights of employment.
The case involved two waiters at one of Cape Town’s former top
restaurants, Vilamoura in Camps Bay which has since closed. They took
the restaurant to the Commission for Conciliation Mediation and Arbitration
(CCMA) after being dismissed without reason or procedure. The CCMA found
in the waiters’ favor and granted them an award of $13, 400 each.
When the restaurant appealed, the Labor Court upheld the CCMA ruling
that the waiters be seen as permanent members of staff.
Sean de Waal, a former waiter with a law degree who assisted the two,
said that the fact that the CCMA found that they were permanent employees
of the restaurant could have far-reaching implications for the tens
of thousands of waiters working in South Africa.
He said that up to now the law had ignored the industry, which was not
regulated at all. This in spite of the fact that more and more people
were taking up waitering as a full-time career.
“Waiters are often told: ‘If you don’t like it, there’s
the door’ and there is no union representing their rights.”
Vilamoura closed at the end of May and was later ordered by the Cape
High Court to vacate its Camps Bay premises following an application
from its former landlord, Momentum Capital Asset Trust company, Xtraprops
66 (Pty) Ltd.
De Waal said waiters and bar staff were still owed more than $5,000
in gratuities by Vilamoura while all staff, including managers, were
still owed salaries and retrenchment payouts.
He said auditors Deloitte and Touche in Johannesburg were handling the
matter and were awaiting a scheme of arrangement to be drawn up by attorneys,
but it had been dragging on for five months.
“Staff, especially kitchen staff who were paid only $100 to $130
a month and are now out of a job, are very unhappy with the slow progress.”
He said that Vilamoura, like most other restaurants, had deducted a
percentage from waiters’ gratuities for bar staff wages and taken
off money for “breakages,” in clear contravention of the Basic
Conditions of Employment Act.
The gratuities went into Vilamoura’s bank account and were supposed
to be paid out weekly but in the run-up to the closure, the money stopped
being paid.
De Waal said that at Vilamoura waiters had been “paid” a commission
on their sales of 2.5 percent minus VAT, effective to about 1.75 percent.
“Gratuities paid by customers on credit cards had 10 percent deducted
for bar staff and between three percent and five percent taken for bank
credit card charges. They also had to pay $2.50 every shift for ‘breakages’
regardless of whether they broke anything and if they did break anything
they were again charged, not even at cost.”
In addition to this, waiters were required to buy their own uniforms
which were changed at least once a year at a cost of around $50 per
person.
A waitress in a prestigious CBD restaurant said the system of deductions
was fairly standard in most restaurants in Cape Town.
She preferred not to be named for fear of being victimized at work but
said she hoped the ruling would mean that more waiters stood up for
their rights.
“It must be the only industry where business owners not only don’t
have to pay their staff but where their waiters land up paying other
staff members like the kitchen and bar staff.”
She said that even if you did not receive a tip, which happened with
a lot of foreigners who come from countries where waiters were paid
salaries, staff still had to pay their percentages.
De Waal said that traditionally waitering had been seen a part-time
job, done by mainly white students who never regarded it as a long-term
career.
“But more and more people are starting to make it a career, especially
in Cape Town which is so tourist friendly.”
He said to have it regulated could only be to the benefit of both restaurant
owners and their staff.
However, Fran Herschell, a human resources manager for the Ambassador
Group, said the ruling might not necessarily set a precedent because
waiters would still be regarded as permanent part-time employees as
opposed to permanent full-time.
“It would mean they would be entitled to certain rights like being
paid a salary and sick leave but not necessarily to benefits that full-time
permanent employees enjoy such as medical aid and pension.”
But Neil Markovitz, the chairman of the Federated Hospitality Association
(Fedhasa) in the Western Cape, said that the industry needed to start
providing the correct platform to enable people to become full-time
professional waiters.
“In doing so we will then see the benefits coming through and we’ll
also be able to start achieving a more consistent level of service.”
Markovitz said waitering had always been regarded as very transient.
“But this has to change. The industry needs to start giving it
a bit more respect and regarding it as a full-time profession.”
A report in the Sunday Times last month said waiters and barkeepers
at certain upmarket Johannesburg restaurants take home more pay each
month than some civil servants.
Source: Independent online (South Africa)
Are you (genetically) up to the job?
By Andreas Tzortzis
Oct. 25 — In a future where a person’s chance at getting
sick can be read from their genes, German politicians are discussing
how much of that information a potential employer has a right to know.
Advocates say the bill, which is still in discussion, clearly regulates
how far employers are allowed to go in determining how genetically fit
someone is for a job. In jobs such as construction or public transportation,
the law would allow for genetic testing for symptoms of color blindness
among other things, according to a report in the newsmagazine Der Spiegel.
“It sets the conditions for the type of tests that can be conducted,”
Heinz Putzhammer, a representative of the Federation of German Trade
Unions who worked on an early draft of the bill, told Deutsche Welle.
“I think we’re on the right track because the limiting of
genetic tests is in any case necessary in order to protect the person
or the private sphere.”
But some fear that track could nevertheless lead to genetic discrimination.
Testing for symptoms of a disease is just a few short steps away from
tests that would help employers determine whether to hire someone based
on their chance of developing a genetic disease, says Sue Mayer, director
of the UK organization GeneWatch.
“I think you have to put it together,” Mayer told Deutsche
Welle. “I can’t understand why you would want to do a genetic
test for something symptomatic. It would raise the question ‘is
this leading the way to something?’”
In addition, scientists say the tests currently on the market to determine
common genetic diseases, such as diabetes or hypertension, are unreliable
and probably never will be completely accurate. The chance of developing
a sickness, such as heart disease, has a little to do with the genes
a person has inherited and a lot to do with outside factors, such as
whether the person smokes or is overweight.
“The main point with genetic tests is their interpretation. For
most of the genetic tests it’s hard to interpret results,”
Christian Kubisch, a geneticist at the University of Bonn, told Deutsche
Welle. “It’s nearly ridiculous for a company to say we will
test you for these diseases ... these kinds of tests are not good at
the moment and probably never will be.”
Many countries have taken the step of outlawing access to genetic tests
for employers and insurers outright. Beginning with France and Norway
in 1994, Australia, Denmark, the Netherlands and Austria have passed
laws that either severely limit or outright forbid the use of a person’s
genetic information for anything other than medical or scientific purposes.
German opposition politicians said they want a similar law. Parliamentarian
Hubert Hüppe, the deputy chair of the Ethics and Law in Modern
Medicine commission in the German Bundestag, said that the results of
genetic tests, no matter what type, belong in no one’s hands but
the person tested.
“I’m in favor of a strict ban,” Hüppe, a member
of the conservative Christian Democratic Union party, said in a Deutsche
Welle interview. “I’m against any other party being able to
use that information.”
The European Union weighed in on the discussion in the summer of 2003.
In a 17-page opinion, the policy-initiating European Commission said
a medical examination should only be conducted after an employer has
decided on a job candidate.
Whether a person is fit for the job “can be fulfilled through medical
examination but without performing genetic screening,” wrote the
12-member European Group on Ethics in Science and New Technologies.
“Thus, employers should not in general perform genetic screening
nor ask employees to undergo tests.”
Source: Deutsche Welle
German industry chiefs moving to bar
unions from boardrooms
By David Gow
Brussels, Belgium, Oct. 25 — About 50 leading German
business executives will this week draw up plans for radical changes
to the system of co-determination which gives workers and unions seats
in boardrooms. For decades the system has been seen as a boon for
Europe’s biggest economy but is now derided by Michael Rogowski,
president of the Confederation of German Industry, as “an error
of history.”
Mitbestimmung (co-determination) is called a baneful influence
by its critics, preventing the modernization of a floundering economy,
discouraging foreign investors, cementing a rigid labor market and
forcing a flight of capital.
But the system, introduced in the British zone of occupation after
the war before going nationwide in 1976, has found staunch defenders
in Chancellor Gerhard Schröder and Jürgen Schrempp, DaimlerChrysler
chief executive, as well as the unions.
Schröder said last week he had always supported co-determination
and that would remain the case. “It has strengthened, not weakened,
Germany,” he said, echoing the words of his economics minister,
Wolfgang Clement.
Schrempp told Stern magazine he had “very good experiences, all
things considered” with the system, dealing over the past 20
years with very “competent” labor representatives who were
closely bound up with the firm and its success. “In our case
it works extraordinarily well.” Privately, British executives
serving on German boards disagree.
The British originally imposed co-determination in the coal and steel
industries, the industrial muscle behind Hitler’s military power,
in an effort to prevent the rebirth of Nazi-style aggression. Giving
workers equal places in the board room with capital would act as a
brake on over-ambitious expansion.
The nationwide system imposed by Willy Brandt’s Social Democrat
government gave workers and union representatives up to 10 seats on
20-strong supervisory boards which are designed to oversee the executive
board in the development of company policy and strategy — including
investment, rationalization, and closures. The chairman, normally
representing investors, has the casting vote in the event of a deadlock.
Co-determination, its proponents say, has enabled German companies
to manage change in an exemplary fashion through consensus. But critics
argue that companies such as Opel, the carmaker shedding 10,000 jobs,
and Karstadt, the retailer axing 5,500 posts, have been plunged into
financial crisis because the supervisory board postponed radical surgery
or enjoyed so cozy a relationship with the executive board that nothing
ever happened.
Now Rogowski and officials in the German Federation of Employers in
effect want to hand all decision-making powers to the executive board.
Under the revised system being drawn up by their joint working group,
all companies would be empowered to renegotiate co-determination arrangements.
If the “social partners” fail to agree, a draft paper leaked
to Der Spiegel last week says that only a third, rather than a half,
of all supervisory board seats would be reserved for worker representatives.
In Anglo-Saxon-style firms with a single board, the worker representatives
would be confined to a watered-down consultative council. In the coal
and steel industries, co-determination would cease altogether.
Worker representatives, often including union leaders active in a
particular sector such as transport or chemicals, are delegated but
Rogowski’s plans would force a ballot of the entire workforce.
Dennis Snower, head of Kiel’s Institute for the World Economy,
told a reporter from the Süddeutsche Zeitung last week that the
system must be adapted to meet modern demands for entrepreneurial
flexibility, especially among foreign investors.
The most telling business argument for change is that co-determination
is an obstacle to cross-border mergers or, as in the case of Hoechst
and Rhône-Poulenc (now Aventis), forces the transfer of the
company headquarters outside Germany.
But EU company law reforms, in the making for 30 years, will enable
transnational firms to offer shares to the German public, with little
or no co-determination. So far, few British companies seem attracted
by the idea, let alone by Mitbestimmung; their German rivals are much
more interested.
Source: Guardian (UK)
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